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Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 737–600, –700, –700C, –800, –900, and –900ER series airplanes. This AD was prompted by a report of an inboard main landing gear (MLG) door assembly departure due to premature fatigue cracking in the inboard MLG door hinge fittings. This AD requires repetitive inspections for cracking of the inboard MLG door hinge fittings; and replacement or modification of cracked fittings. This AD also provides an option to remove the affected MLG door. We are issuing this AD to detect and correct fatigue cracking in the inboard MLG door hinge fittings, which could result in loss of the MLG door assembly from the airplane, and the MLG door assembly could impact the flight control surfaces and result in reduced controllability of the airplane.
This AD is effective September 20, 2013.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in the AD as of September 20, 2013.
For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, WA 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; Internet
You may examine the AD docket on the Internet at
Nancy Marsh, Aerospace Engineer, Airframe Branch, ANM–120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057–3356; phone: 425–917–6440; fax: 425–917–6590; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. The NPRM published in the
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal (77 FR 36222, June 18, 2012) and the FAA's response to each comment.
American Airlines requested that we revise the NPRM (77 FR 36222, June 18, 2012) to extend the compliance time for the initial inspections from 10,000 total flight cycles to before 18,000 total flight cycles. American Airlines stated that the FAA has not provided sufficient evidence to warrant issuance of regulatory action with such a reduced compliance time. American Airlines calculated that the event described in the service information represents only 0.085 percent of the airplanes under U.S. registry, and that the event described occurred at 24,000 total flight cycles.
We disagree with the request to extend the compliance time. In developing an appropriate compliance time for this action, we considered the safety implications, parts availability, and normal maintenance schedules for the timely accomplishment of the inspections and modifications. There is additional data related to the MLG door hinge failures that is not included in the manufacturer's service bulletin. Up to 10 percent of hinges inspected to date have been found with cracking. The cracking occurred between 11,000 and 24,000 total flight cycles, and has been found on both hinges of the inboard MLG door. In consideration of these items, we have determined that a compliance time of before 10,000 total flight cycles will ensure an acceptable level of safety and allow the inspections and modifications to be done during scheduled maintenance intervals for most affected operators. We have not changed the AD in this regard.
American Airlines requested that we revise paragraph (g) of the NPRM (77 FR 36222, June 18, 2012) to allow installation of new hinges having P/Ns 113A8341–1 and 113A8341–2 as replacements for cracked hinges found during the inspections. American Airlines stated that paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737–52A1167, dated December 1, 2011 (referred to in the NPRM as the appropriate source of service information), implies that an operator may install a new set of hinges having P/Ns 113A8341–1 and 113A8341–2 and restart the inspection threshold and
We agree to allow replacement of cracked hinges with new hinges having P/Ns 113A8341–1 and 113A8341–2, as long as inspections of the replacement hinges are accomplished at the time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737–52A1167, dated December 1, 2011. We have added new paragraph (h)(2) to this AD to clarify that installing new MLG door hinge fittings having P/N 113A8341–1 and 113A8341–2, is acceptable for compliance with the modification specified in paragraphs (g)(1)(ii) and (g)(2)(i) of this AD. Paragraph (h)(2) also specifies that installation of the MLG door hinge fittings having P/N 113A8341–1 and 113A8341–2, must be done using a method approved in accordance with the procedures specified in paragraph (j) of this AD. We have revised subsequent paragraph identifiers accordingly. This difference has been coordinated with Boeing.
Boeing requested that we reword paragraph (g) of the NPRM (77 FR 36222, June 18, 2012) to clarify the follow-on actions required after the inspections. Boeing stated that the requirement to continue repetitive inspections needs to be clarified since it only pertains if the hinges were found to be uncracked.
We agree that clarification is needed. The repetitive inspections are not required if the modification has been accomplished with hinges having P/Ns 113A8341–9 and 113A8341–10. However, the repetitive inspections are required if hinges having P/N 113A8341–1 and 113A8341–2 are installed. We have added this clarification in paragraphs (g)(1) and (g)(2) of this AD.
Southwest Airlines (Southwest) requested that replacement of the hinges be required only on the door where cracks were found, rather than replacing both doors if cracking is found only on one door. Southwest stated it wants the option to not modify a door on which the hinges are not cracked, even though there is hinge cracking on the door on the other side of the airplane. Southwest added that, for a door that has no cracked hinges, the repetitive inspections would remain effective, and modification would not be required prior to further flight.
We agree that only doors with cracked hinges need to be modified, and that the repetitive inspections specified in the AD remain in effect for the door that has not been modified. We have revised paragraph (g)(2)(i) of this AD to clarify that modification is only required on affected doors.
Southwest requested that we allow the option of removing the inboard MLG door from the airplane as specified in the CDL. Southwest noted that the CDL allows for continued operation without the inboard MLG door.
We agree with adding an option to the AD to remove the affected inboard MLG door. However, the removal must be done in accordance with a method approved by the FAA because applicable flight effects and restrictions must be accounted for. In addition, if a door with new hinge fittings is reinstalled, the inspection required by paragraph (h) of this AD must be done. We have added paragraph (g)(2)(ii) of this AD accordingly. We have also added note 1 to paragraph (g)(2)(ii) of this AD to this AD to refer to the CDL as guidance.
Aviation Partners Boeing stated that the installation of winglets per STC ST00830SE (
We have added paragraph (c)(1) to this AD to state that installation of STC ST00830SE (
We have added new paragraph (h)(1) to this AD to clarify that installing new MLG door hinge fittings having P/N 113A8341–9 and 113A8341–10, terminates the inspection requirements of this AD for only the door on which new fittings are installed.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM (77 FR 36222, June 18, 2012) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (77 FR 36222, June 18, 2012).
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.
We estimate that this AD affects 1,175 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We estimate the following costs to do any necessary modification that would be required based on the results of the inspection. We have no way of determining the number of airplanes that might need this modification:
According to the manufacturer, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective September 20, 2013.
None.
(1) This AD applies to The Boeing Company Model 737–600, –700, –700C, –800, –900, and –900ER series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 737–52A1167, dated December 1, 2011.
(2) Installation of Supplemental Type Certificate (STC) ST00830SE (
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 52, Doors.
This AD was prompted by a report of an inboard main landing gear (MLG) door assembly departure due to premature fatigue cracking in the inboard MLG door hinge fittings. We are issuing this AD to detect and correct fatigue cracking in the inboard MLG door hinge fittings, which could result in loss of the MLG door assembly from the airplane, and the MLG door assembly could impact the flight control surfaces and result in reduced controllability of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Except as provided by paragraph (i) of this AD, at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737–52A1167, dated December 1, 2011, do either a detailed or surface high frequency eddy current (HFEC) inspection for cracking of the left- and right-side inboard MLG door hinge fittings, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737–52A1167, dated December 1, 2011.
(1) If no cracking is found, at the times specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737–52A1167, dated December 1, 2011, do the actions specified in either paragraph (g)(1)(i) or (g)(1)(ii) of this AD, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737–52A1167, dated December 1, 2011.
(i) Repeat either a detailed or a surface HFEC inspection for cracking of the left- and right-side inboard MLG door hinge fittings.
(ii) Modify the hinge fittings on the inboard MLG doors by installing P/N 113A8341–9 and 113A8341–10, in accordance with Part 3 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737–52A1167, dated December 1, 2011. Doing the modification specified in this paragraph terminates the inspection requirements for only the door on which new fittings are installed.
(2) If any cracking is found, before further flight, do the actions specified in either paragraph (g)(2)(i) or (g)(2)(ii) of this AD.
(i) Modify the hinge fittings on all affected inboard MLG doors by installing P/N 113A8341–9 and 113A8341–10, in accordance with Part 3 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737–52A1167, dated December 1, 2011. Doing the modification specified in this paragraph terminates the inspection requirements for only the door on which new fittings are installed.
(ii) Remove the affected MLG door, using a method approved in accordance with the procedures specified in paragraph (j) of this AD. For airplanes on which this door is reinstalled, before further flight, accomplish the actions specified in either paragraph
Guidance for removing the door can be found in Section 32–10 of Appendix CDL, Configuration Deviation List, Model 737–100/200/300/400/500/600/700/800/900/900 ER Series, to the Boeing 737–700 Airplane Flight Manual Document D631A001.
(1) Installing new MLG door hinge fittings having P/N 113A8341–9 and 113A8341–10, terminates the inspection requirements of this AD for only the doors on which new fittings are installed.
(2) Installing new MLG door hinge fittings having P/N 113A8341–1 and 113A8341–2, is acceptable for compliance with the modification specified in paragraphs (g)(1)(ii) and (g)(2)(i) of this AD, provided the inspections (both the initial and the repetitive inspections) required by paragraph (g) of this AD are done within the applicable times specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737–52A1167, dated December 1, 2011. Installation of the MLG door hinge fittings having P/N 113A8341–1 and 113A8341–2, as applicable, must be done using a method approved in accordance with the procedures specified in paragraph (j) of this AD. Accomplishing the requirements of this paragraph does not terminate the inspection requirements of paragraph (g) of this AD.
Where Boeing Alert Service Bulletin 737–52A1167, dated December 1, 2011, specifies a compliance time “after the original issue date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
For more information about this AD, contact Nancy Marsh, Aerospace Engineer, Airframe Branch, ANM–120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057–3356; phone: 425–917–6440; fax: 425–917–6590; email:
(1) The Director of the
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Boeing Alert Service Bulletin 737–52A1167, dated December 1, 2011.
(ii) Reserved.
(3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, WA 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; Internet
(4) You may view this service information at FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425–227–1221.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for all The Boeing Company Model 727 airplanes. This AD was prompted by a report of cracking in the left-side chord of the fin closure rib on the vertical stabilizer. This AD requires repetitive inspections of the left and right side chords of the fin closure rib for cracking and corrosion, and related investigative and corrective actions if necessary. We are issuing this AD to detect and correct cracking and corrosion in the left- and right-side chords of the fin closure rib, which could lead to widespread cracking in the chords that might weaken the fin closure rib structure and result in loss of airplane control due to lack of horizontal stabilizer support.
This AD is effective September 20, 2013.
The Director of the
For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, WA 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; Internet
You may examine the AD docket on the Internet at
Berhane Alazar, Aerospace Engineer, Airframe Branch, ANM–120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, Washington 98057–3356; phone: 425–917–6577; fax: 425–917–6590; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. The NPRM published in the
We gave the public the opportunity to participate in developing this AD. We have considered the comments received. Boeing stated that it supports the NPRM (78 FR 25662, May 2, 2013).
FedEx Express commented that it has four airplanes that will be affected by the NPRM (78 FR 25662, May 2, 2013). This commenter also noted that the proposed inspection threshold and intervals can be accomplished within its planned scheduled maintenance checks, that the work-hours and elapsed time to accomplish the proposed inspections will not impact the overall span-time of the planned scheduled maintenance check, and that the proposed inspections do not require any special inspection techniques, training, or tooling.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD as proposed—except for minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM (78 FR 25662, May 2, 2013) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (78 FR 25662, May 2, 2013).
We estimate that this AD affects 98 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective September 20, 2013.
None.
This AD applies to all The Boeing Company Model 727, 727C, 727–100, 727–100C, 727–200, and 727–200F series airplanes, certificated in any category.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 55, Stabilizers.
This AD was prompted by a report of cracking in the left-side chord of the fin closure rib on the vertical stabilizer. We are issuing this AD to detect and correct cracking and corrosion in the left- and right-side chords of the fin closure rib, which could lead to widespread cracking in the chords that might weaken the fin closure rib structure, and result in loss of airplane control due to lack of horizontal stabilizer support.
Comply with this AD within the compliance times specified, unless already done.
Within 24 months after the effective date of this AD: Do a detailed inspection for cracking and corrosion of the left- and right-side chords of the fin closure rib, and do a HFEC inspection of the left- and right-side chords for cracking, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 727–55–0095, dated September 24, 2012. If any cracking or corrosion is found, before further flight, repair or replace the affected right- or left-side chord using a method approved in accordance with the procedures specified in
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
For more information about this AD, contact Berhane Alazar, Aerospace Engineer, Airframe Branch, ANM–120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, Washington 98057–3356; phone: 425–917–6577; fax: 425–917–6590; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Boeing Special Attention Service Bulletin 727–55–0095, dated September 24, 2012.
(ii) Reserved.
(3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, WA 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; Internet
(4) You may view this service information at FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, Washington. For information on the availability of this material at the FAA, call 425–227–1221.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for all Eclipse Aerospace, Inc. Model EA500 airplanes equipped with Avio, Avio with ETT, or Avio NG 1.0 avionics suites. This AD was prompted by a report of potential aircraft hardware failure in the autopilot control panel and the center switch panel. This AD requires either incorporating updates to the aircraft computer system software or incorporating a temporary revision to the aircraft flight manual. We are issuing this AD to correct the unsafe condition on these products.
This AD is effective September 20, 2013.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in the AD as of September 20, 2013.
For service information identified in this AD, contact Eclipse Aerospace, Inc., 26 East Palatine Road, Wheeling, Illinois 60090; telephone: (877) 373–7978; Internet:
You may examine the AD docket on the Internet at
Scott Fohrman, Aerospace Engineer, FAA, Chicago Aircraft Certification Office, 2300 East Devon Avenue, Room 107, Des Plaines, Illinois 60018; phone: (847) 294–7136; fax: (847) 294–7834; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. The NPRM published in the
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (78 FR 30243, May 22, 2013) or on the determination of the cost to the public. However, we have received a revision to one of the service bulletins referenced in the NPRM. The revision does not add any additional burden to the owners/operators of the airplanes affected by the NPRM; therefore, we are including the revised service information into this AD as an additional method of compliance.
We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM (78 FR 30243, May 22, 2013) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (78 FR 30243, May 22, 2013).
Eclipse Aerospace, Inc. Mandatory Service Bulletin Number SB 500–31–026, Rev. A, dated November 6, 2012, and SB 500–31–026, Rev. B, dated March 27, 2013, which applies only to
This AD allows doing either the AFM revision or the ACS software update.
We estimate that this AD affects 81 airplanes of U.S. registry. There are 38 of the affected airplanes equipped with Avio or Avio ETT avionics suites and 43 of the affected airplanes equipped with NG 1.0 avionics suites.
We estimate the following costs to comply with this AD. Airplanes equipped with NG 1.0 avionics suites will be allowed do either the AFM update or the ACS update:
Incorporating the AFM update represents a terminating action for AD compliance without imposing any limitations on aircraft operations. It is the operator's choice to incorporate either the AFM update or the ACS update.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective September 20, 2013.
None.
This AD applies to the following Eclipse Aerospace, Inc. Model EA500 airplanes, all serial numbers, that are certificated in any category, and are equipped with:
(1) Avio avionics suites; or
(2) Avio with ETT avionics suites; or
(3) Avio NG 1.0 avionics suites.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code, Code 23: Communications.
This AD was prompted by a report of potential aircraft hardware failure in the
Unless already done, do the following actions within the compliance times specified in paragraph (g) of this AD.
(1)
(2)
(i) Insert Temporary Revision No. 016, to EA500 POH and FAA-Approved Airplane Flight Manual, Firewall Valve, 06–122204–TR016, issued November 9, 2012, into the Limitations section of the airplane flight manual following paragraph 3.B.(1)(a) of the Accomplishment Instructions in Eclipse Aerospace, Inc. Mandatory Service Bulletin Number SB 500–31–026, Rev. A, dated December 7, 2012, or Eclipse Aerospace, Inc. Mandatory Service Bulletin Number SB 500–31–026, Rev. B, dated March 27, 2013; or
(ii) Update the ACS following paragraphs 3.A. through 3.C. of the Accomplishment Instructions in Eclipse Aerospace, Inc. Mandatory Service Bulletin Number SB 500–31–019, Rev. B, dated March 13, 2013.
(1) The Manager, Chicago Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD.
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Scott Fohrman, Aerospace Engineer, FAA, Chicago ACO, 2300 East Devon Avenue, Room 107, Des Plaines, Illinois 60018; phone: (847) 294–7136; fax: (847) 294–7834; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Eclipse Aerospace, Inc. Mandatory Service Bulletin Number SB 500–31–014, Rev. A, dated February 15, 2011.
(ii) Eclipse Aerospace, Inc. Mandatory Service Bulletin Number SB 500–31–019, Rev. B, dated March 13, 2013.
(iii) Eclipse Aerospace, Inc. Mandatory Service Bulletin Number SB 500–31–026, Rev. A, dated December 7, 2012.
(iv) Eclipse Aerospace, Inc. Mandatory Service Bulletin Number SB 500–31–026, Rev. B, dated March 27, 2013.
(v) Temporary Revision No. 016, to EA500 POH and FAA-Approved Airplane Flight Manual, Firewall Valve, 06–122204–TR016, issued November 9, 2012.
(3) For Eclipse Aerospace, Inc. service information identified in this AD, contact Eclipse Aerospace, Inc. 26 East Palatine Road, Wheeling, Illinois 60090; telephone: (877) 373–7978; Internet:
(4) You may review copies of the referenced service information at the FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329–4148.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are superseding airworthiness directive (AD) 2008–06–29, which applied to all The Boeing Company Model 737–300, –400, and –500 series airplanes. AD 2008–06–29 required repetitive inspections of the downstop assemblies on the main tracks of the No. 2, 3, 4, and No. 5 slats and the inboard track of the No. 1 and 6 slats to verify if any parts are missing, damaged, or in the wrong order; other specified actions; and related investigative and corrective actions if necessary. This new AD retains these requirements and adds an inspection of the slat can interior for foreign object debris (FOD), and removal of any FOD found; modification of the slat track hardware; an inspection for FOD and for damage to the interior surface of the slat cans; and related investigative and corrective actions, if necessary. This AD was prompted by development of a modification by the manufacturer, which, when installed, would terminate the repetitive inspections. We are issuing this AD to prevent loose or missing parts in the main slat track downstop assemblies, which could puncture the slat track housing and result in a fuel leak and consequent fire.
This AD is effective September 20, 2013.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of September 20, 2013.
For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H–65, Seattle, Washington 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; Internet
You may examine the AD docket on the Internet at
Nancy Marsh, Aerospace Engineer, Airframe Branch, ANM–120S, FAA,
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2008–06–29, Amendment 39–15441 (73 FR 15397, March 24, 2008) (“AD 2008–06–29”). AD 2008–06–29 applied to the specified products. The NPRM published in the
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal (78 FR 15332, March 11, 2013) and the FAA's response to each comment.
Boeing stated that it concurs with the content of the proposed rule (78 FR 15332, March 11, 2013).
Aviation Partners Boeing (APB) stated that the installation of winglets per STC ST01219SE (
We concur. We have added new paragraph (c)(2) to this AD, which states that STC ST01219SE (
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the change described previously—and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM (78 FR 15332, March 11, 2013) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (78 FR 15332, March 11, 2013).
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.
We estimate that this AD affects 568 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We have received no definitive data that would enable us to provide a cost estimate for the on-condition actions specified in this AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective September 20, 2013.
This AD supersedes AD 2008–06–29, Amendment 39–15441 (73 FR 15397, March 24, 2008).
(1) This AD applies to all The Boeing Company Model 737–300, –400, and –500 series airplanes, certificated in any category.
(2) Installation of Supplemental Type Certificate (STC) ST01219SE (
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 57: Wings.
This AD was prompted by reports of fuel leaking from a puncture in the slat track housing (referred to as “slat can”). We are issuing this AD to prevent loose or missing parts in the main slat track downstop assemblies, which could puncture the slat track housing and result in a fuel leak and consequent fire.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements of paragraph (f) of AD 2008–06–29, Amendment 39–15441 (73 FR 15397, March 24, 2008), with revised service information. At the applicable times specified in Table 1 of paragraph 1.E. of Boeing Alert Service Bulletin 737–57A1301, dated February 5, 2008; or Boeing Service Bulletin 737–57A1301, Revision 3, dated August 11, 2011; except as provided by paragraph (g)(1) of this AD: Do a detailed inspection or borescope inspection of the downstop assemblies on the main tracks of the No. 2, 3, 4, and 5 slats and the inboard track of the No. 1 and 6 slats to verify if any parts are missing, damaged, or installed in the wrong order; and do all the other specified, related investigative, and corrective actions as applicable; by accomplishing all of the applicable actions specified in the Accomplishment Instructions of Boeing Alert Service Bulletin 737–57A1301, dated February 5, 2008; or Boeing Service Bulletin 737–57A1301, Revision 3, dated August 11, 2011; except as provided by paragraphs (g)(2) and (g)(3) of this AD. Repeat the inspection thereafter at the applicable times specified in Table 1 of paragraph 1.E. of Boeing Alert Service Bulletin 737–57A1301, dated February 5, 2008; or Boeing Service Bulletin 737–57A1301, Revision 3, dated August 11, 2011. Do all applicable related investigative and corrective actions before further flight. As of the effective date of this AD, only Boeing Service Bulletin 737–57A1301, Revision 3, dated August 11, 2011, may be used to accomplish the actions required by this paragraph.
(1) Where Boeing Alert Service Bulletin 737–57A1301, dated February 5, 2008, or Boeing Service Bulletin 737–57A1301, Revision 3, dated August 11, 2011, specifies counting the compliance time from “the date on the service bulletin,” this AD requires counting the compliance time from April 8, 2008 (the effective date of AD 2008–06–29, Amendment 39–15441 (73 FR 15397, March 24, 2008)).
(2) For airplanes on which any downstop assembly part is missing or damaged, a borescope inspection of the inside of the slat track housing for loose parts and damage to the wall of the slat track housing may be accomplished in lieu of the detailed inspection of the inside of the slat track housing that is specified in Boeing Alert Service Bulletin 737–57A1301, dated February 5, 2008; or Boeing Service Bulletin 737–57A1301, Revision 3, dated August 11, 2011. As of the effective date of this AD, only Boeing Service Bulletin 737–57A1301, Revision 3, dated August 11, 2011, may be used to do the actions specified in this paragraph.
(3) If any damaged slat track housing is found during any inspection required by paragraph (g) of this AD: Before further flight, repair in accordance with the Accomplishment Instructions of Boeing Service Bulletin 737–57A1301, Revision 3, dated August 11, 2011; replace the slat can with a new slat can having the same part number, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 737–57A1301, Revision 3, dated August 11, 2011; or repair the slat can using a method approved in accordance with the procedures specified in paragraph (k) of this AD.
Within 24 months after the effective date of this AD, do a one-time detailed inspection of the slat can interior to detect FOD, in accordance with Part III of the Accomplishment Instructions of Boeing Service Bulletin 737–57A1301, Revision 3, dated August 11, 2011. If any FOD is found, before further flight, remove it, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 737–57A1301, Revision 3, dated August 11, 2011.
Within 72 months or 15,000 flight cycles, whichever occurs first, after the effective date of this AD: Modify the slat track hardware by installing new downstop assembly hardware, and do a detailed inspection for FOD and a one-time inspection for damage to the interior surface of the slat can for the inboard and outboard tracks of slats 2 through 5, and the inboard slats of tracks 1 and 6; and do all applicable related investigative and corrective actions; in accordance with the Accomplishment Instructions of Boeing Service Bulletin 737–57A1301, Revision 3, dated August 11, 2011. Do all applicable related investigative and corrective actions before further flight. Accomplishment of the actions required by this paragraph terminates the inspections required by paragraphs (g) and (h) of this AD.
This paragraph provides credit for the actions required by paragraphs (g), (h), and (i) of this AD, if those actions were performed before the effective date of this AD using Boeing Alert Service Bulletin 737–57A1301, Revision 1, dated September 24, 2009; or Boeing Alert Service Bulletin 737–57A1301, Revision 2, dated January 17, 2011; which are not incorporated by reference in this AD.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has
(4) AMOCs approved previously in accordance with AD 2008–06–29, Amendment 39–15441 (73 FR 15397, March 24, 2008), are approved as AMOCs for the corresponding provisions of this AD.
For more information about this AD, contact Nancy Marsh, Aerospace Engineer, Airframe Branch, ANM–120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057–3356; phone: (425) 917–6440; fax: (425) 917–6590; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) Boeing Service Bulletin 737–57A1301, Revision 3, dated August 11, 2011.
(ii) Reserved.
(3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, Washington 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; Internet
(4) You may view this service information at FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, Washington. For information on the availability of this material at the FAA, call 425–227–1221.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 727 airplanes. This AD was prompted by an evaluation by the design approval holder indicating that the frame-to-floor beam attachment is subject to widespread fatigue damage. This AD requires repetitive high frequency eddy current inspections for any crack of the frames at body station (STA) 188 through STA 344, and repair if necessary. We are issuing this AD to detect and correct fatigue cracking at the frame-to-floor beam attachment, on both the left- and right-sides, which could result in reduced structural integrity of the airplane, and decompression of the cabin.
This AD is effective September 20, 2013.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in the AD as of September 20, 2013.
For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, WA 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; Internet
You may examine the AD docket on the Internet at
Berhane Alazar, Aerospace Engineer, Airframe Branch, ANM–120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, Washington 98057–3356; phone: 425–917–6577; fax: 425–917–6590; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. The NPRM published in the
We gave the public the opportunity to participate in developing this AD. We have considered the comments received.
Boeing stated that it supports the NPRM (78 FR 25905, May 3, 2013).
Fedex stated that the NPRM (78 FR 25905, May 3, 2013) will be effective for twenty of its Model 727–200 airplanes, the inspection threshold and intervals will fit within its planned scheduled maintenance checks and therefore will be no impact to available lift, the number of man-hours and elapsed time to accomplish the inspections will not impact the overall span-time of its planned scheduled maintenance check, and the inspections do not require any special inspection techniques, training, or tooling.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting thisAD as proposed—except for minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM (78 FR 25905, May 3, 2013) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (78 FR 25905, May 3, 2013).
We estimate that this AD affects 106 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective September 20, 2013.
None.
This AD applies to The Boeing Company Model 727, 727C, 727–100, 727–100C, 727–200, and 727–200F series airplanes, certificated in any category, as identified in Boeing Special Attention Service Bulletin 727–53–0234, dated January 17, 2013.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by an evaluation by the design approval holder indicating that the frame-to-floor beam attachment is subject to widespread fatigue damage. We are issuing this AD to detect and correct fatigue cracking at the frame-to-floor beam attachment, on both the left- and right-sides, which could result in reduced structural integrity of the airplane, and decompression of the cabin.
Comply with this AD within the compliance times specified, unless already done.
Before the accumulation of 61,000 total flight cycles, or within 24 months after the effective date of this AD, whichever occurs later, do a high frequency eddy current inspection for cracking of the frames (for certain stations), in the area of the floor beam attachments on both the left- and right-sides of the airplane, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 727–53–0234, dated January 17, 2013. Repeat this inspection thereafter at intervals not to exceed 20,000 flight cycles. If any crack is found during any inspection required by this AD, before further flight, repair the crack using a method approved in accordance with the procedures specified in paragraph (h) of this AD.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
For more information about this AD, contact Berhane Alazar, Aerospace Engineer, Airframe Branch, ANM–120S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, Washington 98057–3356; phone: 425–917–6577; fax: 425–917–6590; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Boeing Special Attention Service Bulletin 727–53–0234, dated January 17, 2013.
(ii) Reserved.
(3) For Boeing service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, WA 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; Internet
(4) You may view this service information at FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, Washington 98057–3356. For information on the availability of this material at the FAA, call 425–227–1221.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are superseding airworthiness directive (AD) 2004–15–07, for certain Airbus Model A310 series airplanes. AD 2004–15–07 required repetitive inspections for fatigue cracking of the area around the fasteners of the landing plate of the aileron access doors of the bottom skin panel of the wings, and related corrective action. AD 2004–15–07 also provided for an optional terminating action to end the repetitive inspections. This new AD reduces the initial inspection compliance time and intervals, and provides additional terminating action options. This AD was prompted by a reassessment of a previous fatigue threshold and inspection interval, which resulted in a determination that reduced inspection thresholds and intervals for accomplishment of the tasks are necessary. We are issuing this AD to detect and correct fatigue cracking of the area around the fasteners of the landing plate of the aileron access doors and the bottom skin panel of the wings, which could result in reduced structural integrity of the wings.
This AD becomes effective September 20, 2013.
The Director of the Federal Registe approved the incorporation by reference of certain publications listed in this AD as of September 20, 2013.
The Director of the Federal Register approved the incorporation by reference of certain other publications listed in this AD as of August 31, 2004 (69 FR 44592, July 27, 2004).
You may examine the AD docket on the Internet at
Dan Rodina, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone (425) 227–2125; fax (425) 227–1149.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. The NPRM was published in the
DGAC [Direction Générale de l'Aviation Civile] France issued AD 2003–242(B) [which corresponds to FAA AD 2004–15–07, Amendment 39–13741 (69 FR 44592, July 27, 2004)] to require an inspection programme for aeroplanes with pre- and post-Airbus modification 05106 configurations (Airbus SB A310–57–2004) in order to detect any crack located on the trailing edge of the wing bottom skin No. 2 panel of the all-speed-aileron servo control bay. A crack at this location, if not detected and corrected, would propagate towards the wing rear spar and ultimately into the wing fuel tank area. Undetected cracks would affect the structural integrity of the [left hand] LH and/or [right hand] RH wing.
Since issuance of DGAC France AD 2003–242(B) [which corresponds to FAA AD 2004–15–07, Amendment 39–13741 (69 FR 44592, July 27, 2004)], a reassessment of the previous fatigue threshold and inspection interval has been completed. As a result of the reassessment, the inspection thresholds and intervals for accomplishment of the tasks as defined in Airbus SB A310–57–2082 have been adjusted and reduced. Airbus SB A310–57–2082 Revision 03 has been published, in which the compliance time periods for these inspection thresholds and intervals have been amended.
For the reasons stated above, this [EASA] AD retains the requirements of the DGAC France AD 2003–242(B) [which corresponds to FAA AD 2004–15–07, Amendment 39–13741 (69 FR 44592, July 27, 2004)], which is superseded, and requires implementation of the amended inspection programme.
The initial inspection compliance times are dependent on the configuration (modification status, repair status, and crack length), and type of use (short range, long range, and normal). For airplanes without temporary repairs, the initial inspection compliance time ranges between 2,000 total flight cycles or 10,200 total flight hours, whichever occurs first; and 12,000 total flight cycles or 24,000 total flight hours, whichever occurs first. If the total flight cycles or total flight hours compliance time has been exceeded, the initial inspection compliance time (grace period) ranges between 200 flight cycles or 1,000 flight hours, to within 1,000 flight cycles or 2,800 flight hours, whichever occurs first.
For airplanes with temporary repairs, the initial inspection compliance time is dependent on crack length and ranges between 7 flight cycles or 35 flight hours, whichever occurs first, since the repair; to within 100 flight cycles or 200 flight hours, whichever occurs first, since the repair.
For airplanes with a temporary repair, the compliance time for completing the permanent repair ranges between 35 flight cycles or 175 flight hours, whichever occurs first, after completing the temporary repair; to within 500 flight cycles or 1,000 flight hours,
You may obtain further information by examining the MCAI in the AD docket.
We gave the public the opportunity to participate in developing this AD. We considered the comment received.
FedEx stated that paragraph (n)(1)(iii) in the NPRM (78 FR 8054, February 5, 2013) should refer to Airbus Mandatory Service Bulletin A310–57–2082, Revision 02, dated October 17, 2008, instead of Airbus Service Bulletin A310–57–2082, dated June 11, 2002. FedEx noted that paragraph (n)(1)(i) also refers to Airbus Service Bulletin A310–57–2082, dated June 11, 2002.
We agree to change the reference, and have changed paragraph (n)(1)(iii) in this AD accordingly.
We reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting the AD with the changes described previously—and minor editorial changes. We have determined that these changes:
• Are consistent with the intent that was proposed in the NPRM (78 FR 8054, February 5, 2013) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (78 FR 8054, February 5, 2013).
We estimate that this AD will affect about 58 products of U.S. registry.
The actions that were required by AD 2004–15–07, Amendment 39–13741 (69 FR 44592, July 27, 2004), and are retained in this AD take about 2 work-hours per product, at an average labor rate of $85 per work hour. Based on these figures, the estimated cost of the currently required actions is $170 per product.
We estimate that it will take about 4 work-hours per product to comply with the new basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $19,720, or $340 per product.
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD. We have no way of determining the number of products that may need these actions.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) becomes effective September 20, 2013.
This AD supersedes AD 2004–15–07, Amendment 39–13741 (69 FR 44592, July 27, 2004).
This AD applies to Airbus Model A310–203, –204, –221, –222, –304, –322, –324, and –325 airplanes, certificated in any category, all serial numbers; except for airplanes identified in paragraphs (c)(1) and (c)(2) of this AD.
(1) Airplanes that have been modified in service according to Airbus Service Bulletin A310–57–2081 or during production by Airbus modification 12525.
(2) Airplanes that have been repaired according to Airbus Repair Inspection R573–49243 or R573–49237.
Air Transport Association (ATA) of America Code 57, Wings.
This AD was prompted by a reassessment of the previous fatigue threshold and inspection interval specified in AD 2004–15–07, Amendment 39–13741 (69 FR 44592, July 27, 2004), which resulted in a determination that reduced inspection thresholds and intervals for accomplishment of the tasks are necessary. We are issuing this AD to detect and correct fatigue cracking of the area around the fasteners of the landing plate of the aileron access doors and the bottom skin panel of the wings, which could result in reduced structural integrity of the wings.
You are responsible for having the actions required by this AD performed within the
This paragraph restates the requirements of paragraph (a) of AD 2004–15–07, Amendment 39–13741 (69 FR 44592, July 27, 2004). For airplanes on which Airbus Modification 5106 (Airbus Service Bulletin A310–57–2004, Revision 2, dated March 5, 1990, which is not incorporated by reference in this AD) has not been done as of August 31, 2004 (the effective date of AD 2004–15–07): Within 2,000 flight cycles after August 31, 2004 (the effective date of AD 2004–15–07), or within 3,000 flight cycles after the last inspection done per paragraph (k) of AD 98–26–01, Amendment 39–10942 (63 FR 69179, December 16, 1998), whichever is first; do a high frequency eddy current (HFEC) inspection for cracking of the area around the fasteners of the landing plate of the wing bottom skin panel No. 2 of the left and right wings. Do the inspection per the Accomplishment Instructions of Airbus Service Bulletin A310–57–2082, dated June 11, 2002. If no cracking is found, repeat the inspection thereafter at intervals not to exceed 1,900 flight cycles, until accomplishment of the terminating action specified in paragraph (j) of this AD. Accomplishment of the inspection required by paragraph (k) of this AD terminates the requirements of paragraph (g) of this AD.
This paragraph restates the requirements of paragraph (b) of AD 2004–15–07, Amendment 39–13741 (69 FR 44592, July 27, 2004). For airplanes on which Airbus Modification 5106 has been done as of August 31, 2004 (the effective date of AD 2004–15–07): Do the HFEC inspection required by paragraph (g) of this AD at the applicable time specified in paragraph (h)(1), (h)(2), (h)(3), or (h)(4) of this AD. If no cracking is found, repeat the inspection thereafter at intervals not to exceed 1,900 flight cycles, until accomplishment of the terminating action specified in paragraph (j) of this AD. Accomplishment of the inspection required by paragraph (k) of this AD terminates the requirements of paragraph (h) of this AD.
(1) For airplanes that have accumulated fewer than 17,000 total flight cycles since the date of issuance of the original Airworthiness Certificate or the date of issuance of the original Export Certificate of Airworthiness, whichever is first, as of August 31, 2004 (the effective date of AD 2004–15–07, Amendment 39–13741 (69 FR 44592, July 27, 2004)): Inspect prior to the accumulation of 18,000 total flight cycles.
(2) For airplanes that have accumulated 17,000 or more total flight cycles, but fewer than 19,001 total flight cycles since the date of issuance of the original Airworthiness Certificate or the date of issuance of the original Export Certificate of Airworthiness, whichever is first, as of August 31, 2004 (the effective date of AD 2004–15–07, Amendment 39–13741 (69 FR 44592, July 27, 2004)): Inspect within 2,000 flight cycles after August 31, 2004 (the effective date of AD 2004–15–07).
(3) For airplanes that have accumulated 19,001 or more total flight cycles, but fewer than 21,001 total flight cycles since the date of issuance of the original Airworthiness Certificate or the date of issuance of the original Export Certificate of Airworthiness, whichever is first, as of August 31, 2004 (the effective date of AD 2004–15–07, Amendment 39–13741 (69 FR 44592, July 27, 2004)): Inspect with 1,200 flight cycles after August 31, 2004 (the effective date of AD 2004–15–07).
(4) For airplanes that have accumulated 21,001 or more total flight cycles since the date of issuance of the original Airworthiness Certificate or the date of issuance of the original Export Certificate of Airworthiness, whichever is first, as of August 31, 2004 (the effective date of AD 2004–15–07, Amendment 39–13741 (69 FR 44592, July 27, 2004)): Inspect within 500 flight cycles after August 31, 2004 (the effective date of AD 2004–15–07).
This paragraph restates the requirements of paragraph (c) of AD 2004–15–07, Amendment 39–13741 (69 FR 44592, July 27, 2004). If any cracking is found during any inspection required by paragraph (g) or (h) of this AD: Before further flight, do the actions required by either paragraph (i)(1) or (i)(2) of this AD.
(1) Do a permanent repair of the area by doing the applicable corrective actions per the Accomplishment Instructions of Airbus Service Bulletin A310–57–2082, dated June 11, 2002. Accomplishment of the permanent repair terminates the repetitive inspections required by this AD for the repaired area only.
(2) Do the terminating action specified in paragraph (j) of this AD.
This paragraph restates the optional terminating action information specified in paragraph (d) of AD 2004–15–07, Amendment 39–13741 (69 FR 44592, July 27, 2004), with new service information and new options. Modification of the landing plate of the aileron access doors of the wing bottom skin panel No. 2 of the left and right wings by doing all the actions, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A310–57–2081, dated June 11, 2002; or Airbus Service Bulletin A310–57–2081, Revision 03, dated October 13, 2010; or by doing the repair in accordance with Airbus Repair Instruction R573–49243, Revision C, dated July 16, 2003; or Airbus Repair Instruction R573–49237, Revision D, dated July 16, 2003; which terminates the requirements of this AD. Where Airbus Service Bulletin A310–57–2081, dated June 11, 2002; and Airbus Service Bulletin A310–57–2081, Revision 03, dated October 13, 2010; specify contacting the manufacturer for disposition of certain repair conditions that might be associated with the modification procedure, this AD requires that the repair be done in accordance with a method approved by either the Manager, International Branch, ANM–116, Transport Airplane Directorate, FAA; the Direction Générale de l'Aviation Civile (DGAC) (or its delegated agent); or the European Aviation Safety Agency (EASA) (or its delegated agent).
Except as specified in paragraph (m)(1) of this AD, at the applicable time specified in Paragraph 1.E., “Compliance,” of Airbus Mandatory Service Bulletin A310–57–2082, Revision 03, dated November 15, 2010: Do an HFEC inspection to detect cracking of the area around the fasteners of the landing plate of the wing bottom skin panel No. 2 of the left and right wings; and do all applicable corrective actions; in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A310–57–2082, Revision 03, dated November 15, 2010, except as required by paragraph (m)(2) of this AD. Do all applicable corrective actions before further flight. Repeat the inspection of the area around the fasteners of the landing plate of the wing bottom skin panel number 2 of the left and right wings thereafter at the applicable intervals, including the compliance times for post temporary repair inspections, specified in Paragraph 1.E., “Compliance,” of Airbus Mandatory Service Bulletin A310–57–2082, Revision 03, dated November 15, 2010, except as specified in paragraph (m)(3) of this AD. The temporary repair of cracks, as identified in Airbus Mandatory Service Bulletin A310–57–2082, Revision 03, dated November 15, 2010, does not constitute terminating action for the repetitive inspections required by this AD. Accomplishment of the inspection required by this paragraph terminates the requirements of paragraphs (g) and (h) of this AD. Doing the modification specified in paragraph (j) of this AD terminates the repetitive inspections required by this paragraph.
For airplanes on which the temporary repair as specified in Airbus Mandatory Service Bulletin A310–57–2082 has been done: Within the applicable time specified in Paragraph 1.E., “Compliance,” of Airbus Mandatory Service Bulletin A310–57–2082, Revision 03, dated November 15, 2010, do the permanent repair, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A310–57–2082, Revision 03, dated November 15, 2010, except as provided by paragraph (m)(2) of this AD.
(1) Where Paragraph 1.E., “Compliance,” of Airbus Mandatory Service Bulletin A310–57–2082, Revision 03, dated November 15, 2010, specifies a compliance time “from receipt of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.
(2) Where Airbus Mandatory Service Bulletin A310–57–2082, Revision 03, dated November 15, 2010, specifies to contact Airbus for repair: Before further flight, repair the crack using a method approved by either
(3) Where Paragraph 1.E., “Compliance,” of Airbus Mandatory Service Bulletin A310–57–2082, Revision 03, dated November 15, 2010, specifies to contact Airbus for inspection intervals, this AD requires using an inspection interval approved by either the Manager, International Branch, ANM–116; or EASA (or its delegated agent).
(1) This paragraph provides credit for the actions required by paragraphs (k) and (l) of this AD, if those actions were performed before the effective date of this AD using the service information specified in paragraph (n)(1)(i), (n)(1)(ii), or (n)(1)(iii) of this AD.
(i) Airbus Service Bulletin A310–57–2082, dated June 11, 2002.
(ii) Airbus Service Bulletin A310–57–2082, Revision 01, dated August 22, 2003, which is not incorporated by reference in this AD.
(iii) Airbus Mandatory Service Bulletin A310–57–2082, Revision 02, dated October 17, 2008, which is not incorporated by reference in this AD.
(2) This paragraph provides credit for the modification of the landing plate of the aileron access doors of the wing bottom skin panel No. 2 of the left and right wings required by paragraph (j) of this AD, if those actions were performed before the effective date of this AD using the service information specified in paragraph (n)(2)(i) or (n)(2)(ii) of this AD (which is not incorporated by reference in this AD), except where this service information specifies contacting the manufacturer for disposition of certain repair conditions that might be associated with the modification procedure, this AD requires that the repair be done in accordance with a method approved by either the Manager, International Branch, ANM–116; or the EASA (or its delegated agent).
(i) Airbus Service Bulletin A310–57–2081, Revision 01, dated February 26, 2003, which is not incorporated by reference in this AD.
(ii) Airbus Service Bulletin A310–57–2081, Revision 02, dated October 18, 2007, which is not incorporated by reference in this AD.
The following provisions also apply to this AD:
(1)
(2)
(3)
(1) Refer to MCAI EASA Airworthiness Directive 2011–0125, dated June 30, 2011, for related information.
(2) Service information identified in this AD that is not incorporated by reference may be obtained at the address specified in paragraphs (q)(5) and (q)(6) of this AD.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(3) The following service information was approved for IBR on September 20, 2013.
(i) Airbus Mandatory Service Bulletin A310–57–2082, Revision 03, dated November 15, 2010.
(ii) Airbus Repair Instruction R573–49237, Revision D, dated July 16, 2003.
(iii) Airbus Repair Instruction R573–49243, Revision C, dated July 16, 2003.
(iv) Airbus Service Bulletin A310–57–2081, Revision 03, dated October 13, 2010.
(4) The following service information was approved for IBR on August 31, 2004 (69 FR 44592, July 27, 2004).
(i) Airbus Service Bulletin A310–57–2081, dated June 11, 2002.
(ii) Airbus Service Bulletin A310–57–2082, dated June 11, 2002.
(5) For service information identified in this AD, contact Airbus SAS—EAW (Airworthiness Office), 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
(6) You may review copies of the service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425–227–1221.
(7) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Coast Guard, DHS.
Final rule.
The Coast Guard has changed the drawbridge operation regulations that govern the operation of the Veterans Memorial Bridge across the Taunton River, mile 2.1, between Fall River and Somerset, Massachusetts. The bridge owner, Massachusetts Department of Transportation, submitted a request to reduce the hours the bridge is crewed based upon infrequent requests to open the draw. It is expected that this change to the regulations will provide relief to the bridge owner from crewing the bridge while continuing to meet the reasonable needs of navigation.
This rule is effective September 16, 2013.
Documents mentioned in this preamble are part of docket USCG–2013–0291. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Mr. John W. McDonald, Project Officer, First Coast Guard District Bridge Branch, 617–223–8364,
On May 24, 2013, we published a notice of proposed rulemaking (NPRM) entitled, “Drawbridge Operation Regulation: Taunton River, Fall River and Somerset, MA” in the
The Veterans Memorial Bridge at mile 2.1, across the Taunton River between Somerset and Fall River, Massachusetts, has a vertical clearance of 60 feet at mean high water and 66 feet at mean low water. The horizontal clearance is 200 feet between the bridge protective fenders. The drawbridge operation regulations are listed at 33 CFR 117.5.
The waterway users are predominantly seasonal recreational vessels.
The Veterans Memorial Bridge is a double leaf bascule highway bridge opened to traffic in 2011, at mile 2.1, upstream from the existing Brightman Street Route 6 highway bridge at mile 1.8, across the Taunton River.
The owner of the bridge, Massachusetts Department of Transportation, submitted a request to the Coast Guard to change the drawbridge operating regulations that presently require the draw to be crewed twenty four hours a day and open on signal at all times.
Under this final rule the draw will open on signal between 7 a.m. and 3 p.m., and from 3 p.m. through 7 a.m. the draw would open on signal after at least a two hour advance notice is given by calling the number posted at the bridge. As explained in the NPRM, this decision was based on the few requests to open the bridge the past two years and the high vertical clearance.
The Coast Guard received no comments in response to the notice of proposed rulemaking. As a result, no changes have been made to this final rule.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. This conclusion is based on the fact that this bridge will still open for all vessel traffic at all times provided the advance notice is given 3 p.m. to 7 a.m. by calling the number posted at the bridge.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601–612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard received no comments from the Small Business Administration on this rule. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
This rule would affect the following entities, some of which might be small entities: the owners or operators of vessels needing to transit through the bridge.
This action will not have a significant economic impact on a substantial number of small entities for the following reasons: The bridge will continue to open on signal from 7 a.m. to 3 p.m. and from 3 p.m. to 7 a.m. after a two hour advance notice is given. Additionally, the bridge has a vertical clearance of 60 feet at mean high water and 66 feet at mean low water which allows many vessels to pass through the bridge without a need for an opening.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this rule, if the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1–888–REG–FAIR (1–888–734–3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the “
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerns Regulations That Significantly Affect Energy Supply, Distribution, or Use.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have concluded that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule simply promulgates the operating regulations or procedures for drawbridges. This rule is categorically excluded, under figure 2–1, paragraph (32)(e), of the Instruction.
Under figure 2–1, paragraph (32)(e), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:
33 U.S.C. 499; 33 CFR 1.05–1; Department of Homeland Security Delegation No. 0170.1.
(f) The draw of the Veterans Memorial Bridge, mile 2.1, across the Taunton River between Fall River and Somerset, shall operate as follows:
(1) From 7 a.m. through 3 p.m. the draw shall open on signal.
(2) From 3 p.m. through 7 a.m. the draw shall open on signal provided a two hour advance notice is given by calling the number posted at the bridge.
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the draw of the Norfolk Southern #5 Railroad Bridge, across the Elizabeth River Eastern Branch, mile 1.1, at Norfolk, VA. This deviation is necessary to facilitate replacing the broken tread plates and shimming the remaining tread plates to the proper elevation on the Norfolk Southern #5 Railroad drawbridge. There are a total of 10 tread plates that need to be replaced. This temporary deviation allows the drawbridge to remain in the closed to navigation position.
This deviation is effective from 10 a.m. on August 19, 2013 to 6 p.m. August 30, 2013.
The docket for this deviation, [USCG–2013–0684] is available at
If you have questions on this temporary deviation, call or email Mrs. Kashanda Booker, Bridge Administration Branch Fifth District, Coast Guard; telephone (757) 398–6227, email
The Norfolk Southern Corporation, who owns and operates this drawbridge, has requested a temporary deviation from the current operating regulation set out in 33 CFR 117.5 to facilitate thermite welding on the rails.
Under the regular operating schedule, the Norfolk Southern #5 Railroad Bridge, mile 1.1, in Norfolk, VA, the draw must open promptly and fully for the passage of vessels when a request or signal to open is given. The draw normally is maintained in open-to-navigation position and only closes for train crossings or periodic maintenance. The Norfolk Southern #5 railroad Bridge, at mile 1.1, across the Elizabeth River (Eastern Branch) in Norfolk, VA, has a vertical clearance in the closed position to vessels of 6 feet above mean high water.
Under this temporary deviation, the drawbridge will be maintained in the closed to navigation position each day, from 10 a.m. to 6 p.m., on August 19, 2013 until August 30, 2013. At all other times, the drawbridge will operate under its normal operating schedule. The drawbridge normally is maintained in the open-to-navigation position with
The Elizabeth River Eastern Branch is used by a variety of vessels including military, tugs, commercial, and recreational vessels. The Coast Guard has carefully coordinated the restrictions with these waterway users. The Coast Guard will also inform additional waterway users through our Local and Broadcast Notices to Mariners of the closure periods for the bridge so that vessels can arrange their transits to minimize any impacts caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period.
This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on the Niagara River near North Tonawanda, NY. This safety zone is intended to restrict vessels from a portion of the Niagara River during the Thunder on the Niagara hydroplane race. This temporary safety zone is necessary to protect mariners and vessels from the navigational hazards associated with a hydroplane race.
This rule will be effective from 9:30 a.m. on August 17, 2013, until 5:30 p.m. August 18, 2013. This rule will be enforced from 9:30 a.m. until 5:30 p.m. on August 17 and 18, 2013.
Documents mentioned in this preamble are part of docket [USCG–2013–0701]. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email LT Christopher Mercurio, Chief of Waterways Management, U.S. Coast Guard Sector Buffalo; telephone 716–843–9573, email
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable and contrary to the public interest. The final details for this event were not known to the Coast Guard until there was insufficient time remaining before the event to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be both impracticable and contrary to the public interest because it would inhibit the Coast Guard's ability to protect spectators and vessels from the hazards associated with a hydroplane race, which are discussed further below.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this temporary rule effective less than 30 days after publication in the
Between 10 a.m. and 5 p.m. on August 17 and 18, 2013, a series of hydroplane races will take place on the Niagara River near North Tonawanda, NY. The Captain of the Port Buffalo has determined that hydroplane races create a significant risk to public safety and property. Such hazards include collisions between participants and the boating public.
With the aforementioned hazards in mind, the Captain of the Port Buffalo has determined that this temporary safety zone regulation is necessary to ensure the safety of spectators and vessels during the Thunder on the Niagara hydroplane race series. This safety zone regulation will be enforced from 9:30 a.m. until 5:30 p.m. on August 17 and 18, 2013. This zone will encompass all waters of the Niagara River, near North Tonawanda, NY within two miles of the Grand Island Bridge located within a zone described by the following positions: Beginning at 43°03′32.95″ N, 078°54′46.93″ W to 43°03′14.55″ N, 078°55′15.97″ W then to 43°02′39.72″ N,078°54′13.05″ W then to 43°02′59.99″ N, 078°53′41.99″ W and returning to the point of origin (NAD 83).
Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving
We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for relatively short time. Also, the safety zone is designed to minimize its impact on navigable waters. Furthermore, the safety zone has been designed to allow vessels to transit around it. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.
Under the Regulatory Flexibility Act (5 U.S.C. 601–612), we have considered the impact of this proposed rule on small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in a portion of the Niagara River during the daytime hours of August 17 and 18, 2013.
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This safety zone would be activated, and thus subject to enforcement, for only 8 hours each day. Traffic may be allowed to pass around the zone in between the heats at idle speed with the permission of the Captain of the Port. The Captain of the Port can be reached via VHF channel 16. Before the activation of the zone, we would issue local Broadcast Notice to Mariners.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104–121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1–888–REG–FAIR (1–888–734–3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a safety zone and,
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR parts 165 as follows:
33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Buffalo or his designated on-scene representative.
(3) The “on-scene representative” of the Captain of the Port Buffalo is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port Buffalo to act on his behalf.
(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Buffalo or his on-scene representative to obtain permission to do so. The Captain of the Port Buffalo or his on-scene representative may be contacted via VHF Channel 16. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port Buffalo, or his on-scene representative.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on Lake Erie, Conneaut, OH. This safety zone is intended to restrict vessels from a portion of Lake Erie during the D-Day Conneaut event. This temporary safety zone is necessary to protect mariners and vessels from the navigational hazards associated with a historical re-enactment.
This rule will be effective from 3 p.m. August 16, 2013, to 5 p.m. August 17, 2013. On August 16, 2013, this rule will be enforced from 3 p.m. to 5 p.m. On August 17, 2013, this rule will be enforced from 2 p.m. to 5 p.m., or until all vintage U.S. fighter planes leave the area.
Documents mentioned in this preamble are part of docket [USCG–2013–0648]. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email LT Christopher Mercurio, Chief of Waterways Management, U.S. Coast Guard Sector Buffalo; telephone 716–843–9343, email
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable and contrary to the public interest. The final details for this event were not known to the Coast Guard until there was insufficient time remaining before the event to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be both impracticable and contrary to the public interest because it would inhibit the Coast Guard's ability to protect spectators and vessels from the hazards associated with a historic re-enactment, which are discussed further below.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this temporary rule effective less than 30 days after publication in the
From 4 p.m. to 4:30 p.m. on August 16, 2013, and from 3 p.m. to 4 p.m. on August 17, 2013, or until all vintage
With the aforementioned hazards in mind, the Captain of the Port Buffalo has determined that this temporary safety zone regulation is necessary to ensure the safety of spectators and vessels during the D-Day Conneaut. On August 16, 2013, this regulation will be enforced from 3 p.m. to 5 p.m. On August 17, 2013, this regulation will be enforced from 2 p.m. to 5 p.m., or until all vintage U.S. fighter planes leave the area. The safety zone established by this rule covers waters of Lake Erie near Conneaut, OH encompasses by a line starting at position 41°57.71′ N and 080°34.18′ W, then to 41°58.36′ N and 080°34.17′ W, then to 41°58.53′ N and 080°33.55′ W, then to 41°58.03′ N and 080°33.72′ W and returning to the point of origin (NAD 83).
Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).
We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for relatively short time. Also, the safety zone is designed to minimize its impact on navigable waters. Furthermore, the safety zone has been designed to allow vessels to transit around it. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.
Under the Regulatory Flexibility Act (5 U.S.C. 601–612), we have considered the impact of this proposed rule on small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in a portion of Lake Erie from 3 p.m. to 5 p.m. on August 16, 2013, and from 2 p.m. to 5 p.m. on August 17, 2013, or until all vintage U.S. fighter planes leave the area.
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This safety zone would be activated, and thus subject to enforcement, for only few hours each day over two days. Traffic may be allowed to pass through the zone with the permission of the Captain of the Port. The Captain of the Port can be reached via VHF channel 16. Before the activation of the zone, we would issue local Broadcast Notice to Mariners.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1–888–REG–FAIR (1–888–734–3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321–4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a safety zone and, therefore it is categorically excluded from further review under paragraph 34(g) of Figure 2–1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and record keeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR parts 165 as follows:
33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Buffalo or his designated on-scene representative.
(3) The “on-scene representative” of the Captain of the Port Buffalo is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port Buffalo to act on his behalf.
(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Buffalo or his on-scene representative to obtain permission to do so. The Captain of the Port Buffalo or his on-scene representative may be contacted via VHF Channel 16. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port Buffalo, or his on-scene representative.
Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking direct final action to approve revisions to the Antelope Valley Air Quality Air Management District (AVAQMD) and Ventura County Air Pollution Control District (VCAPCD) portions of the California State Implementation Plan (SIP). Under authority of the Clean Air Act (CAA or the Act), we are rescinding local rules that concern sulfur oxide emissions from lead smelters for AVAQMD and volatile organic compounds (VOC) emissions from the data storage for VCAPCD and vacuum producing device industries for VCAPCD.
These rules are effective on October 15, 2013 without further notice, unless EPA receives adverse comments by September 16, 2013. If we receive such comments, we will publish a timely withdrawal in the
Submit comments, identified by docket number EPA–R09–OAR–2013–0394, by one of the following methods:
1.
2.
3.
Robert Marinaro, EPA Region IX, (415) 972–3019,
Throughout this document, “we,” “us” and “our” refer to EPA.
Table 1 lists the rule rescissions we are approving with the dates that they were rescinded by the local air agencies and submitted by the California Air Resources Board.
On April 9, 2013, EPA determined that the submittal for AVAQMD Rule 1101, and VCAPCD Rules 37 and 67 met the completeness criteria in 40 CFR Part 51 Appendix V, which must be met before formal EPA review.
We approved versions of AVAQMD Rule 1101 into the SIP on September 2, 1981 (46 FR 43968), VCAPCD Rule 37 on December 13, 1999 (64 FR 69404), and VCAPCD Rule 67 on April 17, 1987 (52 FR 12522).
Section 110(a) of the CAA requires States to submit regulations that control volatile organic compounds, oxides of nitrogen, particulate matter, and other air pollutants which harm human health and the environment. These rules were developed as part of the local agency's program to control these pollutants.
AVAQMD Rule 1101, Secondary Lead Smelters/Sulfur Oxides; VCAPCD Rule 37, Project XL; and VCAPCD Rule 67, Vacuum Producing Devices were originally adopted to help reduce these various air pollutants but are being rescinded because there are no longer any sources in the Districts subject to them and none are anticipated in the future.
These rules describe requirements intended to help control emissions from lead smelters in AVAQMD, data storage in VCAPCD and vacuum producing devices in VCAPCD. These rule rescissions must not relax existing requirements consistent with CAA sections 110(l) and 193. EPA policy that we used to evaluate these rule revisions includes “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).
The Districts have requested rescission because they no longer have any sources subject to these rules, they do not expect any new sources in the future, and any new sources would be subject to restrictive NSR permitting requirements. The Districts have reviewed permit databases, emission inventories, and trade group contacts to determine that they have no sources, and we have reviewed their analysis and have no basis to question their analysis. Therefore, we believe these rule rescissions are consistent with relevant policy and guidance.
As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rule rescissions because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this
Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 15, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the Proposed Rules section of today's
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
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(
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes a tolerance for residues of imazapic in or on sugarcane, cane. BASF Corporation requested this tolerance under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective August 16, 2013. Objections and
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2012–0384, is available at
Lois Rossi, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (703) 305–7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ–OPP–2012–0384 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before October 15, 2013. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA–HQ–OPP–2012–0384, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Based upon review of the data supporting the petition, EPA has revised the proposed tolerance level and the commodity definition. EPA is also revising the tolerance expression to clarify the chemical moieties that are covered by the tolerances and specify how compliance will be measured. The reasons for these changes are explained in Unit IV.C.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for imazapic including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with imazapic follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as
Imazapic is categorized as having low acute toxicity by the oral, inhalation, and dermal routes of exposure. It is minimally irritating to the eye, non-irritating to the skin, and not a skin sensitizer.
No evidence of subchronic toxicity was observed to rodents via the oral or dermal routes. In the chronic oral toxicity study in dogs, minimal degeneration and/or necrosis of the skeletal muscle of the thigh and/or abdomen was seen at the lowest dose tested. At higher doses, additional effects were seen in the liver (increased absolute weights and changes in clinical chemical parameters), kidney (decreased urinary pH in females), and erythropoietic system (changes in hematological parameters, and microscopic changes in the bone marrow and spleen). At the high dose, there was also inflammation in the esophagus similar to that in skeletal muscle as well as discoloration of the lung in both sexes.
In the developmental toxicity study with rats, no maternal or developmental toxicity was seen at the limit dose. In the developmental toxicity study in rabbits, maternal effects of decreased body-weight gain and food consumption were observed at the dose level that did not result in developmental effects. In the 2-generation reproduction study in rats, no parental or reproductive toxicity was seen at the limit dose. In the battery of mutagenicity studies, no evidence of mutagenicity was observed.
Imazapic is classified as a “Group E” chemical (not likely to be a human carcinogen) by any relevant route of administration based on the absence of carcinogenicity seen in rodents.
Since the last risk assessment in 2001, acute neurotoxicity, subchronic neurotoxicity, and immunotoxicity studies were submitted in response to the 40 CFR part 158 data requirements. There was no evidence of immunotoxicity or neurotoxicity observed in the submitted studies.
In the 2001 risk assessment and in the
Specific information on the studies received and the nature of the adverse effects caused by imazapic as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for imazapic used for human risk assessment is shown in the Table of this unit.
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2.
Based on the FQPA Index Reservoir Screening Tool (FIRST) and Screening Concentration in Ground Water (SCI–GROW) models, the estimated drinking water concentrations (EDWCs) of imazapic for chronic exposures for non-cancer assessments are estimated to be 1.46 ppb for surface water and 13.73 ppb for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For chronic dietary risk assessment, the water concentration of value 13.73 ppb was used to assess the contribution to drinking water.
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4.
EPA has not found imazapic to share a common mechanism of toxicity with any other substances, and imazapic does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that imazapic does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
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i. Although all required toxicity studies have been submitted for imazapic, the chronic study used for chronic dietary risk assessment did not demonstrate a NOAEL, and a LOAEL was used as an endpoint. Therefore, EPA is retaining the 10X FQPA safety factor for use of a LOAEL to extrapolate a NOAEL.
ii. There is no indication that imazapic is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.
iii. There is no evidence that imazapic results in increased susceptibility in
iv. There are no residual uncertainties identified in the exposure databases. The chronic dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to imazapic in drinking water. These assessments will not underestimate the exposure and risks posed by imazapic.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
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Adequate enforcement methodology (Method SOP–PA.0288, a liquid chromatography with tandem mass spectroscopy (LC–MS/MS)) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755–5350; telephone number: (410) 305–2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The Codex has not established a MRL for imazapic on sugarcane.
EPA revised the proposed commodity definition of “sugarcane” to reflect the correct terminology of “sugarcane, cane” and revised the proposed tolerance of 0.01 ppm to 0.03 ppm. All residues (parent plus metabolites) were below the limit of quantification (LOQ). The revised tolerance level is based upon the sum of the LOQs (0.01 + 0.01 + 0.01 = 0.03 ppm) for each of the three compounds in the tolerance expression. In accordance with Agency guidance on tolerance expressions, the tolerance expressions for imazapic are revised by clarifying that the tolerances cover “residues of imazapic, including its metabolites and degradates”.
Therefore, tolerances are established for residues of imazapic, 2-[4,5-dihydro-4-methyl-4-(1-methylethyl)-5-oxo-1
This final rule establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
The amendments read as follows:
(a)
(2) Tolerances are established for residues of the herbicide imazapic, including its metabolites and degradates, in or on the commodities listed in the following table. Compliance with the tolerance levels specified is to be determined by measuring the sum of imazapic (2-[4,5-dihydro-4-methyl-4-(1-methylethyl)-5-oxo-1
(c)
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes a tolerance for residues of emamectin benzoate in or on wine grapes. Syngenta Crop Protection, LLC, requested this tolerance under the Federal Food, Drug, and Cosmetic Act (FFDCA). This document also makes a technical correction to the tolerance expression in the section.
This regulation is effective August 16, 2013. Objections and requests for hearings must be received on or before October 15, 2013, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2012–0405, is available at
Lois Rossi, Registration Division, (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (703) 305–7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ–OPP–2012–0405 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before October 15, 2013. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA–HQ–OPP–2012–0405, by one of the following methods:
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Based upon review of the data supporting the petition, EPA has modified the requested tolerance to emamectin, including its metabolites and degradates, in or on grape, wine at 0.03 ppm. The reason for this change is explained in Unit IV.C.
This final rule also corrects a typographical error (one “ZB” missing) in the currently published tolerance expression for § 180.505(a)(2).
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for emamectin benzoate including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with emamectin benzoate follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Emamectin acts by binding to gamma-aminobutyric acid (GABA) gated chloride channels at two different sites, a high affinity binding site that activates the channel and a low-affinity site that blocks the channel. GABA plays a critical role in nervous system development through both non-synaptic and synaptic mechanisms. Consequently, emamectin may have the potential to influence GABA-mediated events important to brain development. Within the mammalian brain, a member of this class of compound (abamectin) has been shown to have widespread binding but particularly abundant in the cerebellum. Through action on the enteric nervous system and induction of longitudinal rhythmic contractions in the isolated ileum, emamectin like abamectin may therefore influence GABA-mediated regulation of metabolism, food intake and body weight at multiple sites. Although GABA receptor mediated neurotoxicity is a solid hypothesis, data in mammalian preparations linking alterations in GABA receptor function to disruptions in neuronal excitability
Integral to its mechanism of action in mammals, this class of compounds is also a substrate for (i.e., binds to) P-glycoprotein (P-gp). P-glycoprotein is a member of the adenosine triphosphate (ATP) binding cassette transporter proteins, which reside in the plasma membrane and function as a transmembrane efflux pump, moving xenobiotics from intracellular to the extracellular domain against a steep concentration gradient with ATP-hydrolysis providing the energy for active transport. P-gp is found in the canallicular surface of hepatocytes, the apical surface of proximal tubular cells in the kidneys, brush border surface of enterocytes, luminal surface of blood capillaries of the brain (blood brain barrier), placenta, ovaries, and the testes. As an efflux transporter, P-gp acts as a protective barrier to keep xenobiotics out of the body by excreting them into bile, urine, and intestinal lumen and prevents accumulation of these compounds in the brain and gonads, as well as the fetus. Therefore, some test animals, in which genetic polymorphisms compromise P-gp expression, are particularly susceptible to abamectin or emamectin-induced neurotoxicity. An example is the CF–1 mouse. Some CF–1 mice are deficient in P-gp and are found to be highly sensitive to the neurotoxicity of abamectin. A small population of humans is also found to be deficient of ATP binding cassette (ABC) transporter proteins due to polymorphism in the gene encoding ABC transporter proteins (Dubin-Johnson Syndrome). In addition, collie dogs have been known to be deficient in P-gp.
Consistent with the mode of action, the main target organ for emamectin is the nervous system; clinical signs (tremors, ptosis, ataxia, and hunched posture) and neuropathology (neuronal degeneration in the brain and in peripheral nerves, muscle fiber degeneration) were found in most of the emamectin studies in rats, dogs, and mice. The dose/response curve was very steep in several studies (most notably with CF–1 mice and dogs), with severe effects (morbid sacrifice and neuropathology) sometimes seen at the lowest-observed-adverse-effect-levels (LOAELs) (0.1 milligram/kiolgram/day (mg/kg/day) with no-observed-adverse-effect-level (NOAEL) of 0.075 mg/kg/day). Although no increased sensitivity was seen in developmental toxicity studies in rats and rabbits, increased qualitative and/or quantitative sensitivity of rat pups was seen in the reproductive toxicity and in the developmental neurotoxicity studies.
The carcinogenicity and mutagenicity studies provide no indication that emamectin is carcinogenic or mutagenic. Emamectin is classified as “not likely to be carcinogenic to humans.”
The available emamectin data show that there is a difference in species sensitivity, and the data suggest the following order: Rat NOAELs/LOAELs greater than dog NOAELs/LOAELs greater than mouse NOAELs/LOAELs. The toxicity endpoints and points of departure for risk were selected from the results of the 15-day CF–1 mouse oral toxicity study.
Specific information on the studies received and the nature of the adverse effects caused by emamectin benzoate as well as the NOAEL and the LOAEL from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for emamectin benzoate used for human risk assessment is shown in Table 1 of this unit.
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Such effects were identified for emamectin benzoate. In estimating acute dietary exposure, EPA used food consumption information from the U.S. Department of Agriculture (USDA) 2003–2008 National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA). As to residue levels in food, a probabilistic acute dietary exposure assessment was conducted. The anticipated residue estimates, used for most crops, were based on field trial data. Tolerance-level residues were used for cottonseed oil, tree nuts (including pistachios), and wine. Pesticide Data Program (PDP) monitoring data for years 2009 and 2010 were used for apples since apple juice had a significant impact on exposure. The Dietary Exposure Evaluation Model (DEEM) default processing factors were used except for commodities with chemical-specific processing studies. Percent crop treated (PCT) data were used.
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Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if:
• Condition a: The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain the pesticide residue.
• Condition b: The exposure estimate does not underestimate exposure for any significant subpopulation group.
• Condition c: Data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area.
In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by FFDCA section 408(b)(2)(F), EPA may require registrants to submit data on PCT.
For the acute dietary assessment, the Agency estimated the maximum PCT for existing uses as follows: Almonds, 2.5%; apples, 20%; broccoli, 20%; cabbage, 25%; cauliflower, 20%; celery, 40%; cotton, 2.5%; lettuce, 20%; pears, 20%; peppers, 15%; spinach, 10%; and tomatoes, 20%.
For the chronic dietary assessment, the Agency estimated the PCT for existing uses as follows: Almonds, 1%; apples, 10%; broccoli, 5%; cabbage, 10%; cauliflower, 10%; celery, 25%; cotton, 1%; lettuce, 10%; pears, 5%; peppers, 5%; spinach, 5%; and tomatoes, 10%.
In most cases, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), proprietary market surveys, and the National Pesticide Use Database for the chemical/crop combination for the most recent 6–7 years. EPA uses an average PCT for chronic dietary risk analysis. The average PCT figure for each existing use is derived by combining available public and private market survey data for that use, averaging across all observations, and rounding to the nearest 5%, except for those situations in which the average PCT is less than one. In those cases, 1% is used as the average PCT and 2.5% is used as the maximum PCT. EPA uses a maximum PCT for acute dietary risk analysis. The maximum PCT figure is the highest observed maximum value reported within the recent 6 years of available public and private market survey data for the existing use and rounded up to the nearest multiple of 5%.
Also for the acute dietary assessment, the Agency used the following PCT estimates for the following recently approved uses: Cantaloupe, 51%; cucumber, 26%; squash, 46%; and watermelon, 21%. For the chronic dietary assessment, the Agency used the following PCT estimates for the following recently approved uses: Cantaloupe, 40%; cucumber, 14%; squash, 29%; and watermelon, 19%.
These PCT estimates for recently approved uses represent the upper bound of the use expected during the pesticide's initial 5 years of registration; that is, PCT for new uses of emamectin benzoate is a threshold of use that EPA is reasonably certain will not be exceeded for each registered use site. The PCT recommended for use in the chronic dietary assessment for new uses is calculated as the average PCT of the market leader or leaders, (i.e., the pesticide(s) with the greatest PCT) on that site over the 3 most recent years of available data. The PCT recommended for use in the acute dietary assessment for new uses is the maximum observed PCT over the same period. Comparisons are only made among pesticides of the same pesticide types (e.g., the market leader for insecticides on the use site is selected for comparison with a new insecticide). The market leader included in the estimation may not be the same for each year since different pesticides may dominate at different times.
Typically, EPA uses USDA/NASS as the source data because it is publicly available and directly reports values for PCT. When a specific use site is not reported by USDA/NASS, EPA uses proprietary data and calculates the PCT given reported data on acres treated and acres grown. If no data are available, EPA may extrapolate PCT for new uses from other crops, if the production area and pest spectrum are substantially similar.
A retrospective analysis to validate this approach shows few cases where the PCT for the market leaders were exceeded. Further review of these cases identified factors contributing to the exceptionally high use of a new pesticide. To evaluate whether the PCT for new uses for emamectin benzoate could be exceeded, EPA considered whether there may be unusually high pest pressure, as indicated in emergency exemption requests for emamectin benzoate; the pest spectrum of the new pesticide in comparison with the market leaders and whether the market leaders are well established for that use; and whether pest resistance issues with past market leaders provide emamectin benzoate with significant market potential. Given currently available information, EPA concludes that it is unlikely that actual PCT for emamectin benzoate will exceed the estimated PCT for new uses during the next 5 years.
The Agency believes that the three conditions discussed in Unit III.C.1.iv. have been met. With respect to Condition a, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available reliable information on the regional consumption of food to which emamectin benzoate may be applied in a particular area.
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Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Screening Concentration in Ground Water (SCI–GROW) models, the estimated drinking water concentrations (EDWCs) of emamectin benzoate for acute exposures are estimated to be between 0 and 0.465 parts per billion (ppb) for surface water and 0.00054 ppb for ground water, and for chronic exposures are estimated to be 0.150 ppb for surface water and 0.00054 ppb for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, a drinking water residue distribution based on the PRZM/EXAMS modeling was used. For chronic dietary risk assessment, the water concentration value of 0.150 ppb was used to assess the contribution to drinking water.
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OPP's
In conclusion, although GABA
For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
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The Agency evaluated subchronic, chronic, carcinogenicity, developmental, and reproduction studies as well as acute and subchronic neurotoxicity studies for any effects that might indicate that emamectin induced changes in the organs generally associated with immunological toxicity. In the studies evaluated, only the 14-week oral toxicity study in dogs showed an increase in the incidence of thymus atrophy at 1 mg/kg/day. In the 1-year feeding study in dog, thymus atrophy was not reported at similar dose levels tested. Currently, the point of departure for risk assessment is 0.075 mg/kg/day, which is more than 10 times less than the dose where thymus atrophy had been reported. Therefore, since the acute and chronic RfD's are 0.00025 mg/kg/day and 0.000075 mg/kg/day, respectively, the Agency does not believe an immunotoxicity study will result in a lower POD than that which is currently in use for overall risk assessment. As such, a database uncertainty factor is not necessary to account for the lack of an immunotoxicity study.
In regards to the inhalation toxicity study, there are currently no residential uses registered for emamectin benzoate, and therefore, lack of this study does not impact the Agency's assessment of pre- and postnatal exposure.
Another completeness issue with regard to the toxicity database is that EPA is using a short-term study for long-term risk assessment. The data submitted show that CF–1 mice, which lack P-gp, are the most sensitive species/strand of animal tested. EPA only has data on CF–1 mice in short-term studies. Longer-term studies used CD–1 mice. Hence a short-term study in CF–1 mice was used to choose the chronic POD. The extrapolation from a short-term study in CF–1 mice to a long-term POD introduces additional uncertainty into the risk assessment process.
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a. For the 2-generation reproduction study:
• There was a clear NOAEL for the offspring toxicity.
• The decreased fertility seen in F
b. For the developmental neurotoxicity study:
• Although multiple offspring effects (including decreased pup body weight, head and body tremors, hindlimb extension and splay, changes in motor activity and auditory startle) were seen at the highest dose, and no maternal effects were seen at any dose, there was a clear NOAEL for offspring toxicity at the low dose.
• The offspring LOAEL (at the mid dose) is based on a single effect seen on only 1 day (decreased motor activity on PND 17) and no other offspring toxicity was seen at the LOAEL.
Two other considerations raise residual concerns about whether the traditional safety factors are protective of potential pre- and postnatal toxicity. First, the steepness of the dose-response curve means that there is a small margin of error provided by reliance on the study NOAEL. Second, the severity of effects at the LOAEL (death and neuropathology), exacerbate the concern raised by the steep dose response curve.
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The dietary drinking water assessment utilizes water concentration values generated by model and associated modeling parameters which are designed to provide conservative, health protective, high-end estimates of water concentrations which will not likely be exceeded.
Taking all of these findings into account, EPA has concluded that there are not reliable data supporting lowering of the default 10X FQPA SF for chronic exposures. Specifically, EPA does not have reliable data showing that infants and children will be adequately protected using the traditional inter- and intra-species safety factors due to the steepness of the dose-response curve, the severity of effects at the LOAEL (death and neuropathology), and the use of a short-term study for long-term risk assessment. The Agency did not use a chronic study for the point of departure because the chronic studies were conducted in rats, dogs, and CD–1 mice.
Taking all of these findings into account, for acute exposures, EPA has concluded that there are reliable data supporting lowering the default 10X FQPA SF to 3X. Although the steepness of the dose-response curve and the severity of the effects at the LOAEL introduce uncertainty with regard to whether the inter- and intra-species safety factors are protective of infants and children from acute effects, EPA has concluded that use of the 15-day neurotoxicity CF–1 mouse study provides reliable data to reduce the FQPA SF for acute assessments from 10X to 3X. The Agency determined that a 3X FQPA SF is adequate for assessing acute dietary risk based on the following weight of evidence considerations:
• An endpoint of concern attributable to a single exposure was not identified for
• Although there was evidence of increased susceptibility in the developmental neurotoxicity (DNT) study, an endpoint of concern was not identified for acute dietary risk assessment for prenatal exposures because the adverse effect at the LOAEL (i.e., decrease in open-field motor activity) was seen only on postnatal day 17 and not seen after a single exposure.
• The POD selected for acute dietary risk assessment is a NOAEL (with a clear LOAEL) seen after repeated dosing but is used for assessing acute risk (i.e., a very conservative approach).
Therefore, the Agency is confident that the retention of a 3X FQPA SF (to account for the steepness of the dose response curve) will not underestimate risk and provides reasonable certainty of no harm from exposure to emamectin benzoate.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure
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Both short- and intermediate-term adverse effects were identified; however, emamectin benzoate is not registered for any use patterns that would result in either short- or intermediate-term residential exposure. Short- and intermediate-term risk is assessed based on short- and intermediate-term residential exposure plus chronic dietary exposure. Because there is no short- or intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess short- or intermediate-term risk), no further assessment of short- or intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating short- and intermediate-term risk for emamectin benzoate.
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Adequate enforcement methodology (high performance liquid chromatography with fluorescence detection (HPLC/FLD)) is available to enforce the tolerance expression.
The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755–5350; telephone number: (410) 305–2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
Harmonization issues regarding the tolerance expression are associated with this petition. There is a Codex MRL for grapes of 0.03 ppm. The Codex residue definition for the MRL and for the risk assessment is emamectin B
The difference in the proposed tolerance level of 0.005 ppm and the recommended tolerance level of 0.03 ppm is because EPA does not set tolerances on wine but rather on the raw commodity wine grapes. The recommended tolerance level reflects the harmonized residue values in the raw commodity as described in Unit IV.B.
EPA has revised the tolerance expression to clarify:
1. That, as provided in FFDCA section 408(a)(3), the tolerance covers metabolites and degradates of emamectin benzoate not specifically mentioned.
2. That compliance with the specified tolerance levels is to be determined by measuring only the specific compounds mentioned in the tolerance expression.
Therefore, a tolerance is established for residues of emamectin, including its metabolites and degradates, in or on grape, wine at 0.03 ppm. Compliance with the tolerance levels specified is to be determined by measuring only the sum of emamectin (a mixture of a minimum of 90% 4′-epi-methylamino-4′-deoxyavermectin B
This final rule establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
The amendments read as follows:
(a) * * *
(1) * * *
(2) Tolerances are established for emamectin, including its metabolites and degradates, in or on the commodities in the following table. Compliance with the tolerance levels specified in the following table is to be determined by measuring only the sum of emamectin (MAB
U.S. Environmental Protection Agency.
Direct final rule.
The U.S. Environmental Protection Agency Region 5 is publishing a direct final Notice of Deletion of the Quincy Smelter and Calumet Lake parcels of Operable Unit 3 (OU3) of the Torch Lake Superfund Site (Site), located in Houghton County, Michigan, from the National Priorities List (NPL). The NPL, promulgated pursuant to Section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is an appendix of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). This direct final partial deletion is being published by EPA with the concurrence of the State of Michigan, through the Michigan Department of Environmental Quality (MDEQ), because EPA has determined that all appropriate response actions at these identified parcels under CERCLA, other than operation, maintenance, and five-year reviews, have been completed. However, this partial deletion does not preclude future actions under Superfund.
This partial deletion pertains to the surface tailings and slag deposits of the Quincy Smelter and Calumet Lake parcels of OU3. The following parcels or areas will remain on the NPL and are not being considered for deletion as part of this action: Dollar Bay, Point Mills, Boston Pond, and North Entry.
This direct final partial deletion is effective October 15, 2013 unless EPA receives adverse comments by September 16, 2013. If adverse comments are received, EPA will publish a timely withdrawal of the direct final partial deletion in the
Submit your comments, identified by Docket ID No. EPA–HQ–SFUND–1986–0005, by one of the following methods:
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Nefertiti DiCosmo, Remedial Project Manager, U.S. Environmental Protection Agency (SR–6J), 77 West Jackson Boulevard, Chicago, IL 60604, (312) 886–6148,
EPA Region 5 is publishing this Direct Final Notice of Deletion of the Quincy Smelter and Calumet Lake parcels of Operable Unit (OU3) of the Torch Lake Superfund (Site) from the National Priorities List (NPL) and requests public comments on this proposed action. The NPL constitutes Appendix B of 40 CFR part 300, which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), and which EPA promulgated pursuant to section 105 of the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) of 1980, as amended. EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). This partial deletion of the Torch Lake Superfund Site is proposed in accordance with 40 CFR 300.425(e) and is consistent with the Notice of Policy Change: Partial Deletion of Sites Listed on the National Priorities List, (60 FR 55466) on November 1, 1995. As described in 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for Fund-financed remedial actions if future conditions warrant such actions.
Because EPA considers this action to be noncontroversial and routine, this action will be effective October 15, 2013 unless EPA receives adverse comments by September 16, 2013. Along with this Direct Final Notice of Partial Deletion, EPA is co-publishing a Notice of Intent for Partial Deletion in the “Proposed Rules” section of the
Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the Quincy Smelter and Calumet Lake parcels of OU3 and demonstrates how the deletion criteria are met at these land parcels. Section V discusses EPA's action to partially delete the Site parcels from the NPL unless adverse comments are received during the public comment period.
The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the state, whether any of the following criteria have been met:
i. Responsible parties or other persons have implemented all appropriate response actions required;
ii. All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or
iii. The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.
Pursuant to CERCLA section 121(c) and the NCP, EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. EPA conducts such five-year reviews even if a site is
The following procedures apply to deletion of the Quincy Smelter and Calumet Lake parcels of OU3 of the Torch Lake Superfund Site:
(1) EPA consulted with the State of Michigan prior to developing this Direct Final Notice of Partial Deletion and the Notice of Intent for Partial Deletion co-published today in the “Proposed Rules” section of the
(2) EPA has provided the State 30 working days for review of this direct final Notice of Partial Deletion and the parallel Notice of Intent for Partial Deletion prior to their publication today, and the State, through MDEQ, has concurred on the partial deletion of the Site from the NPL.
(3) Concurrently with the publication of this direct final Notice of Partial Deletion, a notice of the availability of the parallel Notice of Intent for Partial Deletion is being published in the Daily Mining Gazette Newspaper, located in Houghton, Michigan. The newspaper notice announces the 30-day public comment period concerning the Notice of Intent for Partial Deletion of the Site from the NPL.
(4) EPA placed copies of documents supporting the proposed partial deletion in the deletion docket and made these items available for public inspection and copying at the Site information repositories.
(5) If adverse comments are received within the 30-day public comment period on this partial deletion action, EPA will publish a timely notice of withdrawal of this direct final Notice of Partial Deletion before its effective date and will prepare a response to comments. EPA may continue with the deletion process on the basis of the Notice of Intent for Partial Deletion and the comments already received.
Deletion of a portion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a portion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.
The following information provides EPA's rationale for deleting the Quincy Smelter and Calumet Lake parcels of OU3 from the NPL.
The Torch Lake Superfund Site (CERCLIS ID MID980901946) is located on the Keweenaw Peninsula in Houghton County, Michigan. The Site includes Torch Lake, the northern portion of Portage Lake, and the northern entry of Torch Lake. In the process of selecting a remedy for the Torch Lake Site, the following areas were selected for remedial measures and thus became part of the Site: defined areas of stamp sands, tailing piles, and slag materials along the shore of and in the vicinity of Torch Lake, Northern Portage Lake, Keweenaw Waterway, Lake Superior, Boston Pond, Calumet Lake, Lake Linden, Hubbell/Tamarack City, Mason Sands, Calumet Lake, Michigan Smelter, Isle-Royale, Grosse-Point, and Quincy Smelter. More specifically, Calumet Lake is located in Calumet, Michigan, about five miles northwest of Torch Lake. Quincy Smelter is located along the Portage Canal in Hancock, Michigan. The Quincy Smelter clean up did not include the historic smelting facility, which was left as is out of historic preservation and community concerns. These properties, covering 600 acres, were not investigated at depth but were defined as part of the Torch Lake Superfund Site because of the surficial materials (stamp sands, tailings, and slag) and their relative locations to the Torch Lake water body. During the site investigation, samples were taken of the surface (0–6 inches) and shallow subsurface (0–3 feet) stamp sands, tailings, and slag piles at the frequency of approximately one composite sample per 20-acre parcel. Data generated reflected similar chemical characteristics in all samples collected. This data was sufficient to assume homogeneity of these materials and to support selection of the remedial action at the Site.
The remedial action included the installation of a soil vegetative cover over areas of stamp sands, tailings, and slag in order to meet the Remedial Action Objectives (RAOs). The remedial action only addressed surface materials associated with the covered land parcels. There may be non-site related contamination with depth or in the vicinity of these defined areas of stamp sands, tailings and slag that is not addressed by this remedial action. This potential contamination was not evaluated or addressed as part of the remedial measures for the Site. Non-site related contamination, if identified in the future, will not be addressed by a subsequent action as part of the remedial action.
Torch Lake was the site of copper milling and smelting facilities and operations for over 100 years. The Lake was a repository of milling wastes, and served as the waterway transportation to support the mining industry. The first of many mills opened on Torch Lake in 1868. At the mills, copper was extracted by crushing or stamping the rock into smaller pieces and driving them through successively smaller meshes. The copper and crushed rocks were separated by gravimetric sorting in a liquid medium. The copper was then sent to a smelter. The crushed rock particles, called tailings, were discarded along with mill processing water, typically by pumping them into the Lake.
Mining output, milling activity, and tailing production peaked in the Keweenaw Peninsula in the early 1900s to 1920. All of the mills at Torch Lake were located on the west shore of the Lake. Many other mining mills and smelters were located throughout the Keweenaw Peninsula. By around 1916, advances in technology allowed for the recovery of copper from tailings previously deposited in Torch Lake. Dredges were used to collect submerged tailings, which were then screened, recrushed, and gravity separated. An ammonia leaching process involving cupric ammonium carbonate was used to recover copper and other metals from conglomerate tailings. During the 1920s, chemical reagents were used to further increase the efficiency of reclamation. The chemical reagents included lime, pyridine oil, coal tar creosotes, wood creosote, pine oil, and xanthates. After reclamation activities were complete, chemically treated tailings were returned to the Lake. In the 1930s and 1940s, the Torch Lake mills operated mainly to recover tailings in Torch Lake. Copper mills were still active in the 1950s, but by the late 1960s copper milling had ceased.
Over 5 million tons of native copper was produced from the Keweenaw Peninsula and more than half of this was processed along the shores of Torch Lake. Between 1868 and 1968, approximately 200 million tons of tailings were dumped into Torch Lake, filling at least 20 percent of the Lake's original volume.
In June 1972, a discharge of 27,000 gallons of cupric ammonium carbonate leaching liquor occurred into the north end of Torch Lake from the storage vats at the Lake Linden Leaching Plant. The Michigan Water Resources Commission (MWRC) investigated the spill. The 1973 MWRC report discerned no deleterious effects associated with the spill, but did observe that discoloration of several acres of lake bottom indicated previous discharges.
In the 1970s, environmental concern developed regarding the century-long deposition of tailings into Torch Lake. High concentrations of copper and other heavy metals in sediments, toxic discharges into the Lake, and fish abnormalities prompted many investigations into long and short-term impacts attributed to mine waste disposal. The International Joint Commission's Water Quality Board designated the Torch Lake basin as a Great Lakes Area of Concern (AOC) in 1983. Also in 1983, the Michigan Department of Public Health announced an advisory against the consumption of Torch Lake sauger and walleye fish due to tumors of unknown origin.
The Torch Lake Superfund Site was proposed for inclusion on the NPL in October 1984 (49 FR 40320). The Site was placed on the NPL in June 1986 (51 FR 21054). The Site is also on the list of sites identified under Michigan's Natural Resources and Environmental Protection Act 451 Part 201.
On May 9, 1988 Notice Letters were issued to Universal Oil Products (UOP) and Quincy Mining Company to perform an RI/FS. UOP is the successor corporation of Calumet Hecla Mining Company, which operated its milling and smelting on the shore of Torch Lake and disposed of the generated tailings near the City of Lake Linden. On June 13, 1988, a Notice Letter was to perform the RI/FS was also issued to Quincy Development Company, which was the current owner of a tailing pile located on the lake shore of Mason City. Negotiations for the RI/FS Consent Order with these Potentially Responsible Parties (PRPs) were not successful due to issues such as the extent of the Site and the number of PRPs.
During the week of May 8, 1989 EPA conducted ground penetrating radar and a sub bottom profile (seismic) survey of the bottom of Torch Lake. The area in which this survey was conducted is immediately off-shore from the Old Calumet and Hecla Smelting Mill Site. The survey located several point targets (possibly drums) on the bottom of Torch Lake. On June 21, 1989 EPA collected a total of eight samples from drums located in the Old Calumet and Hecla Smelting Mill Site near Lake Linden, the Ahmeek Mill Site near Hubbell City, and the Quincy Smelter Site near Mason City. On August 1, 1990 nine more samples were collected from drums located near Tamarack City. Based on the results of this sampling, EPA determined that some of these drums may have contained hazardous substances.
Due to the size and complex nature of the Site, three operable units (OUs) were defined for the Site. Operable Unit 1 includes approximately 500 acres of surface tailings, drums, and slag piles on the western shore of Torch Lake. These areas include the Hubbell/Tamarack City, Lake Linden, and Mason Sands parcels. Operable Unit 2 includes groundwater, surface water, submerged tailings, and sediments in Torch Lake, Portage Lake, the Portage Channel, and other surface water bodies at the Site. Operable Unit 3 includes tailings and slag deposits located at the North Entry of Lake Superior, Michigan Smelter, Quincy Smelter, Calumet Lake, Isle-Royale, Boston Pond, and Grosse-Point (Point Mills/Dollar Bay). Remedial Investigations (RIs) have been completed for all three operable units. The RI for OU1 and OU3 only investigated the surface (0–6 inches) and shallow subsurface (0–3 feet) stamp sands.
Also, the RI assumed that the stamp sands were homogenous, i.e., the stamp sands had similar characteristics wherever they were located. The sampling performed to characterize the OU1 and OU3 tailings was adequate to select the remedial action based on the homogeneity of the parameters measured, the distribution of contaminant compounds, and the relatively low levels of contaminants found. While hot spot contamination may exist, it is not attributable to tailings composition, and could not be reliably located or predicted using any reasonable sampling program. The RI and Baseline Risk Assessment (BRA) reports for OU1 were finalized in July 1991. The RI and BRA reports for OU3 were finalized on February 7, 1992.
The ROD for OU1 and OU3 was signed on September 30, 1992, and the ROD for OU2 was signed on March 31, 1994.
The selected remedial action for the various tailings areas was a soil and vegetative cover and institutional controls. The cover prevents erosion from surface water runoff and wind of contaminants to the impaired sediment. The cover also helps prevent the further degradation of Torch Lake's ecosystem, allowing the Lake to recover over time. The RAOs for OU1 and OU3 were developed as a result of data collected during the RI and included activities to reduce or minimize the exposure to and release of contaminants in tailings and/or slag located at the Site. These activities included:
1. Reducing or minimizing potential risks to human health associated with the inhalation of airborne contaminants from the tailings and/or slag located at the Site;
2. Reducing or minimizing potential risks to human health associated with direct contact with and/or the ingestion of the tailings and/or the slag located at the Site;
3. Reducing or minimizing the release of contaminants in tailings to the groundwater through leaching; and
4. Reducing or minimizing the release of contaminants in tailings to the surface water and sediment by soil erosion and/or air deposition.
All of the RAOs for the Torch Lake parcels in this deletion package have been met with the successful implementation of a vegetative cover over the stamp sands, tailing piles, and slag materials over the various tailings areas. The vegetative soil cover reduces airborne and direct contact exposure to the contaminants in the stamp sands, tailings, and slag. The affected groundwater is part of OU2, for which the selected remedy was no action, and OU2 was deleted from the NPL in 2002. Since the selected remedy for groundwater was no action, it is not imperative that the OU1 and OU3 remedy achieve the third RAO. The vegetative soil cover serves to stabilize the stamp sands, tailings, and slag underneath and reduce the erosion of these materials and their associated contaminants to the surface water and sediment. The selected remedy for OU1 and OU3 has the following specific components:
1. Deed restrictions to control the use of tailing piles so that tailings will not be left in a condition which is contrary to the intent of the remedy;
2. Removal of debris such as wood, empty drums, and other garbage in the tailing piles for off-site disposal in order to effectively implement the soil cover with vegetation;
3. Soil cover with vegetation in the following areas:
• Operable Unit 1 tailings in Hubbell/Tamarack City, Lake Linden, and Mason Sands (approximately 442 acres);
• Operable Unit 1 slag pile in Hubbell (approximately 9 acres); and
• Operable Unit 3 tailings in Calumet Lake, Boston Pond, Michigan Smelter, and Grosse-Point (Point Mills/Dollar Bay) (approximately 229 acres)
4. Assuming that the slag pile located in the Quincy Smelter area (approximately 25 acres) will be developed as part of a national park, no action was taken. If this area is not developed as a national park in the future, deed restrictions will be sought to prevent the development of residences in the slag pile area;
5. North Entry, Redridge and Freda tailings are excluded from the area to be covered with soil and vegetation (and are not currently being proposed for deletion here). North Entry, Redridge, and Freda are along the Lake Superior shore where pounding waves and water currents will likely retard or destroy any remedial actions. As a result, EPA currently believes it to be technically impracticable to implement the chosen remedy at these locations.
The amended remedy was developed because of information that had been collected and analyzed since the 1992 ROD. The 1992 ROD for OU1 and OU3 determined that no action should be taken at Quincy Smelter, as it was slated for development as a national park. The 1992 ROD stipulated that if this area were not developed as a national park in the future, deed restrictions would be implemented to prevent residential development in the historic slag pile area. The data presented in the Second Five-Year Review Report, signed on March 27, 2008, showed that no development had occurred to date and that the stamp sands and slag at the Site continued to erode into the Portage Channel, degrading the environment and weakening the integrity and protectiveness of the overall remedy.
Based upon this information, EPA determined that it was appropriate to modify the remedy selected in the 1992 ROD. A ROD amendment, signed in July 2009, selected a soil and vegetative cover at Quincy Smelter, consistent with other stamp sand areas in OU3, to minimize erosion and aerial deposition of the stamp sands. Institutional controls (ICs) were also implemented to protect the long-term integrity of the cover materials and minimize direct contact with the stamp sands and slag piles. The area addressed with vegetative cover encompasses about 6.5 acres which are situated outside of the currently fenced buildings and structures.
In August 1994, an Interagency Agreement (IAG) was signed with the United States Department of Agriculture (USDA)-Natural Resources Conservation Service (NRCS) to perform RD work. The RD was conducted in conformance with the 1992 ROD and was completed for the entire Site in September 1998. At that time, the IAG with USDA–NRCS was amended to perform remedial action (RA) management and oversight. The September 1998 IAG was funded with $13.8 million, and the Michigan Department of Environmental Quality (MDEQ) provided a $1.52 million match for the RA work. The construction schedule was set at six years (1999–2004). It was estimated in the 1992 ROD that remedy implementation time would be five years. Other factors that influenced the construction schedule included the restricted availability of USDA–NRCS engineers and the relatively short construction season due to the northerly location of the Site.
On-site construction began in June 1999 and was completed in September 2005. A Preliminary Close-Out Report documenting construction completion was signed on September 23, 2005.
In April 2002, EPA and MDEQ determined that the remedy was functioning as intended, and a partial NPL deletion of the Lake Linden parcel, in addition to all of OU2, was finalized. The Hubbell/Tamarack City parcels were deleted from the NPL via a partial deletion in 2004.
No remedial work was required as part of the OU2 No Action ROD. Thus, there were no construction activities for this OU. EPA deleted OU2 in the April 2002 partial NPL deletion.
Construction activities at Calumet Lake were completed in late October 2003. Shoreline protection, including rip-rap rock, was also installed along much of the shoreline where the remedy was implemented. The rip-rap rock (boulders averaging about one-foot in diameter with a specified density and integrity) protects the remedy from wave erosion.
RA construction activities were performed at Calumet Lake in accordance with approved the design and specifications. It is anticipated that the cover material and shoreline protection installed at the Site will continue to meet the RAOs established for the Site.
The Quincy Smelter portion of the Site was originally excluded from the vegetative soil cover remedy in the 1992 ROD for OU1 and OU3, as described previously, assuming that the on-site slag pile would be developed as part of the Keweenaw National Historical Park. The 1992 ROD further stated that if this area was not developed as a national park, deed restrictions would be sought to prevent residential development in the slag pile area.
In July 2005, EPA removed asbestos from two buildings at Quincy Smelter as part of a time-critical removal action. In August and September 2005, EPA installed rip-rap along the shoreline and a water diversion system to prevent storm water from running directly into the Keweenaw Waterway. A fence was also constructed around the buildings. On September 13, 2005, EPA inspected the rip-rap and storm water culvert and found it to be in compliance with all design specifications.
In July 2006, the Keweenaw National Historical Park observed and notified EPA of continued erosion along the shoreline. During a site inspection in June 2007, EPA and MDEQ documented the level of continuing erosion at the Quincy Smelter, as well as the continued deterioration of buildings. EPA discussed the need for further actions at the property and possible solutions with the National Park Service, Franklin Township, and other stakeholders. As a result of these communications, EPA conducted a removal action at Quincy Smelter in 2008 to stabilize area conditions.
A ROD amendment was signed on July 31, 2009 selecting a vegetative cover for the stamp sands on the Quincy Smelter portion of the site. The 1992 ROD selected no action for the Quincy Smelter area because there were plans to develop the area as a national park. A national park was not developed by 2009, and no ICs were implemented for that area. As a result, EPA determined that additional remedial action at Quincy Smelter was necessary. The ROD amendment required the implementation of the same vegetative cover at Quincy Smelter as the rest of the site. This included placing an earthen cover over the stamp sands, debris removal, seeding and mulching, lined channel/shoreline/slope protection, access road construction,
In 1994, EPA issued an Administrative Order on Consent (AOC) to all affected landowners requiring them, within six months of the AOC, to implement the appropriate deed restrictions on their property. The deed restrictions run with the land and bind future owners to the restrictions. These ICs serve to protect vegetative cover and thus prevent residual mining contamination from entering surface water by ensuring that no disturbance of vegetative cover occurs. If disturbance occurs, the owner is required to replace soil and repair vegetative cover. There are restrictive covenants in place on approximately half of the properties at the Torch Lake Superfund Site. The ICs for the parcels proposed for deletion, Quincy Smelter and Calumet Lake, are in place and effective. The following restriction applies at these parcels: if during the process of any development, building, construction, or other activity on the property by or with consent from the owner of the property, the cover is disturbed so that upon completion of the development, construction, building or other activity on the property by or with consent of the owner of the property stamp sand is exposed, then the owner of the property shall cover the exposed stamp sand and shall re-vegetate the re-covered area.
The objectives of the remedies were to control exposures to Site contaminants and control erosion of stamp sands, tailings, and slag to the surface water and sediments by covering with vegetation. The remedial actions at Quincy Smelter and Calumet Lake are operational and functional. The remedial actions are functioning properly and performing as designed.
EPA conducted activities necessary to ensure that the implemented remedy at Quincy Smelter and Calumet Lake was operational and functional for a period of three years after the remedial construction at the last parcel. The remedy was jointly determined by EPA and MDEQ to be functioning properly and performing as designed in September 2008. EPA conducted annual observations of the remediated areas for three years after construction, and conducted major repairs, as necessary, on each area where the remedy was implemented.
MDEQ will be conducting O&M of the shoreline protection and cover material. In accordance with the September 1998 Superfund Site Contract signed by EPA and MDEQ, O&M was to begin three years after the remedy implementation or when the remedy was jointly determined by EPA and MDEQ to be functioning properly as designed, whichever is earlier. This milestone was reached in September 2008 for Calumet Lake and Quincy Smelter, along with several other Torch Lake property parcels. EPA has conducted sampling since then and has been working with the State to finalize a revised O&M plan to fit the new estimated recovery time for the sediment. MDEQ will be conducting the O&M at Quincy Smelter and Calumet Lake.
EPA conducted its most recent FYR at the Site in March 2013. The 2013 FYR noted that the remedy at OU3, which includes Quincy Smelter and Calumet Lake, is protective of human health and the environment in the short-term. This FYR calls for continued documentation from landowners at the Site to verify proper deed and permitting restrictions are in place on wells screened in the stamp sands on other parcels of OU1 and OU3. Additionally, a lack of vegetative cover exists on certain properties of Point Mills. There is also a recommendation to work with the Houghton County Road Commission to ensure that road traction tailings excavation practices at Point Mills are consistent with the 1992 ROD. However, the parcels proposed for this deletion did not have any issues affecting protectiveness.
Public participation activities have been satisfied as required in CERCLA section 113(k), 42 U.S.C. 9613(k), and CERCLA section 117, 42 U.S.C. 9617. Documents in the deletion docket, which EPA relied on for recommendation of the partial deletion of this Site from the NPL, are available to the public in the information repositories and at
The NCP (40 CFR 300.425(e)) states that portions of a site may be deleted from the NPL when no further response action is appropriate. EPA, in consultation with the State of Michigan, has determined that no further action is appropriate.
EPA, with concurrence of the State of Michigan through MDEQ, has determined that all appropriate response actions under CERCLA, other than operation, maintenance, and five-year reviews, have been completed. Therefore, EPA is deleting the Quincy Smelter and Calumet Lake parcels of OU3 of the Torch Lake Superfund Site from the NPL.
Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication. This action will be effective October 15, 2013 unless EPA receives adverse comments by September 16, 2013. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final notice of partial deletion before the effective date of the partial deletion and it will not take effect. EPA will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to partially delete and the comments already received. There will be no additional opportunity to comment.
Environmental protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
For the reasons set out in this document, 40 CFR part 300 is amended as follows:
33 U.S.C. 1321(c)(2); 42 U.S.C. 9601–9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923; 3 CFR, 1987 Comp., p. 193.
Bureau of Land Management, Interior.
Final rule.
This final rule amends the Bureau of Land Management (BLM) mineral resources regulations to update some fees that cover the BLM's cost of processing certain documents relating to its minerals programs and some filing fees for mineral-related documents. These updated fees include those for actions such as lease renewals and mineral patent adjudications.
This final rule is effective October 1, 2013.
You may send inquiries or suggestions to Director (630), Bureau of Land Management, 2134LM, 1849 C Street NW., Washington, DC 20240; Attention: RIN 1004–AE32.
Steven Wells, Chief, Division of Fluid Minerals, 202–912–7143, Mitchell Leverette, Chief, Division of Solid Minerals, 202–912–7113; or Faith Bremner, Regulatory Affairs Analyst, 202–912–7441. Persons who use a telecommunications device for the deaf (TDD) may leave a message for these individuals with the Federal Information Relay Service (FIRS) at 1–800–877–8339, 24 hours a day, 7 days a week.
The BLM has specific authority to charge fees for processing applications and other documents relating to public lands under Section 304 of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1734. In 2005, the BLM published a final cost recovery rule (70 FR 58854) establishing or revising certain fees and service charges, and establishing the method it would use to adjust those fees and service charges on an annual basis.
At 43 CFR 3000.12(a), the regulations provide that the BLM will annually adjust fees established in Subchapter C according to changes in the Implicit Price Deflator for Gross Domestic Product (IPD–GDP), which is published quarterly by the U.S. Department of Commerce. See also 43 CFR 3000.10. This final rule will allow the BLM to update these fees and service charges by October 1 of this year, as required by the 2005 regulation. The fee recalculations are based on a mathematical formula. The public had an opportunity to comment on this procedure during the comment period on the original cost recovery rule, and this new rule simply administers the procedure set forth in those regulations. Therefore, the BLM has changed the fees in this final rule without providing opportunity for additional notice and comment. The Department of the Interior, therefore, for good cause finds under 5 U.S.C. 553(b)(B) and (d)(3) that notice and public comment procedures are unnecessary.
The BLM publishes a fee update rule each year, which becomes effective on October 1 of that year. The fee updates are based on the change in the IPD–GDP from the 4th Quarter of one calendar year to the 4th Quarter of the following calendar year. This fee update rule is based on the change in the IPD–GDP from the 4th Quarter of 2011 to the 4th Quarter of 2012, thus reflecting the rate of inflation over four calendar quarters.
The fee is calculated by applying the IPD–GDP to the base value from the previous year's rule, also known as the “existing value.” This calculation results in an updated base value. The updated base value is then rounded to the closest multiple of $5, or to the nearest cent for fees under $1, to establish the new fee.
Under this rule, 30 fees will remain the same and 18 fees will increase. Nine of the fee increases will amount to $5 each. The largest increase, $55, will be applied to the fee for adjudicating a mineral patent application containing more than 10 claims, which will increase from $2,940 to $2,995. The fee for adjudicating a patent application containing 10 or fewer claims will increase by $25—from $1,470 to $1,495.
In this rule, we will correct the title given in the table for 43 CFR part 3730. The title used in prior rules, “Multiple Use, Mining,” is actually the title for Group 3700, the group of regulations that includes part 3730. The specific title for part 3730, in which the fee for a notice of protest of placer mining operations is found at 43 CFR 3736.2(b), is “Public Law 359; Mining in Powersite Withdrawals: General.” This is a technical revision that has no substantive effect.
The calculations that resulted in the new fees are included in the table below:
Each year, the figures in the Existing Value column in the table above (not those in the Existing Fee column) are used as the basis for calculating the adjustment to these fees. The Existing Value is the figure from the New Value column in the previous year's rule. In the case of fees that were not in the table the previous year, or that had no figure in the New Value column the previous year, the Existing Value is the same as the Existing Fee. Because the new fees are derived from the new values—rounded to the nearest $5 or the nearest penny for fees under $1—adjustments based on the figures in the Existing Fee column would lead to significantly over- or under-valued fees over time. Accordingly, fee adjustments are made by multiplying the annual change in the IPD–GDP by the figure in the Existing Value column. This calculation defines the New Value for this year, which is then rounded to the nearest $5 or the nearest penny for fees under $1, to establish the New Fee.
This document is not a significant rule and the Office of Management and Budget has not reviewed this rule under Executive Order 12866.
The BLM has determined that the rule will not have an annual effect on the economy of $100 million or more. It will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The changes in today's rule are much smaller than those in the 2005 final rule, which did not approach the threshold in Executive Order 12866. For instructions on how to view a copy of the analysis prepared in conjunction with the 2005 final rule, please contact one of the persons listed in the
This rule will not create inconsistencies or otherwise interfere with an action taken or planned by another agency. This rule does not change the relationships of the onshore minerals programs with other agencies' actions. These relationships are included in agreements and memoranda of understanding that would not change with this rule.
In addition, this final rule does not materially affect the budgetary impact of entitlements, grants, or loan programs, or the rights and obligations of their recipients. This rule applies an inflation factor that increases some existing user fees for processing documents associated with the onshore minerals programs. However, most of these fee increases are less than 3 percent and none of the increases materially affect the budgetary impact of user fees.
Finally, this rule will not raise novel legal issues. As explained above, this rule simply implements an annual process to account for inflation that was adopted by and explained in the 2005 cost recovery rule.
This final rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601
The SBA would consider many, if not most, of the operators the BLM works with in the onshore minerals programs to be small entities. The BLM notes that this final rule does not affect service industries, for which the SBA has a different definition of “small entity.”
The final rule may affect a large number of small entities since 18 fees for activities on public lands will be increased. However, the BLM has concluded that the effects will not be significant. Most of the fixed fee increases will be less than 3 percent as a result of this final rule. The adjustments result in no increase in the fee for the processing of 30 documents relating to the BLM's minerals programs. The highest adjustment, in dollar terms, is for adjudications of mineral patent applications involving
This final rule is not a “major rule” as defined at 5 U.S.C. 804(2). The final rule will not have an annual effect on the economy greater than $100 million; it will not result in major cost or price increases for consumers, industries, government agencies, or regions; and it will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. For the 2005 final rule, which established the fee adjustment procedure that this rule implements, the BLM completed a threshold analysis, which is available for public review in the administrative record for that rule. The fee increases implemented in today's rule are substantially smaller than those provided for in the 2005 rule.
This final rule will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. In accordance with Executive Order 13132, therefore, we find that the final rule does not have significant federalism effects. A federalism assessment is not required.
These regulations contain information collection requirements. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) 1004–0034 which expires July 31, 2015;
(2) 1004–0137 which expires October 31, 2014;
(3) 1004–0162 which expires July 31, 2015;
(4) 1004–0185 which expires December 31, 2015;
(5) 1004–0132 which expires December 31, 2013;
(6) 1004–0073 which expires August 31, 2013, renewal pending;
(7) 1004–0025 which expires March 31, 2016;
(8) 1004–0114 which expires August 31, 2013; and
(9) 1004–0121 which expires March 31, 2016.
As required by Executive Order 12630, the BLM has determined that this rule will not cause a taking of private property. No private property rights will be affected by a rule that merely updates fees. The BLM therefore certifies that this final rule does not represent a governmental action capable of interference with constitutionally protected property rights.
In accordance with Executive Order 12988, the BLM finds that this final rule will not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Executive Order.
The BLM has determined that this final rule is administrative and involves only procedural changes addressing fee requirements. In promulgating this rule, the government is conducting routine and continuing government business of an administrative nature having limited context and intensity. Therefore, it is categorically excluded from environmental review under Section 102(2)(C) of NEPA, pursuant to 43 CFR 46.205 and 46.210(c) and (i). The final rule does not meet any of the 12 criteria for exceptions to categorical exclusions listed at 43 CFR 46.215.
Pursuant to Council on Environmental Quality (CEQ) regulations and the environmental policies and procedures of the Department of the Interior, the term “categorical exclusions” means categories of actions “which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of [CEQ] regulations (§ 1507.3) and for which, therefore, neither an environmental assessment nor an environmental impact statement is required.” 40 CFR 1508.4; see also BLM National Environmental Policy Act Handbook H–1790–1, Ch. 4, at 17 (Jan. 2008).
The BLM has determined that this final rule is not significant under the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501
In accordance with Executive Order 13175, the BLM has determined that this final rule does not include policies that have tribal implications. A key factor is whether the rule would have substantial direct effects on one or more Indian tribes. The BLM has not found any substantial direct effects. Consequently, the BLM did not utilize the consultation process set forth in Section 5 of the Executive Order.
In developing this rule, the BLM did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Pub. L. 106–554).
In accordance with Executive Order 13211, the BLM has determined that this final rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The distribution of or use of energy would not be unduly affected by this final rule. It merely adjusts certain administrative cost recovery fees to account for inflation.
The principal author of this rule is Faith Bremner of the Division of Regulatory Affairs, Bureau of Land Management.
Public lands—mineral resources, Reporting and recordkeeping requirements.
For reasons stated in the preamble, the Bureau of Land Management amends 43 CFR Chapter II as follows:
16 U.S.C. 3101
(a) The table in this section shows the fixed fees that you must pay to the BLM for the services listed for Fiscal Year 2014. These fees are nonrefundable and must be included with documents you file under this chapter. Fees will be adjusted annually according to the change in the Implicit Price Deflator for Gross Domestic Product (IPD–GDP) by way of publication of a final rule in the
Federal Emergency Management Agency, DHS.
Final rule.
Section 1105 of the Sandy Recovery Improvement Act of 2013 directs FEMA to establish a nationwide Dispute Resolution Pilot Program (DRPP) in order to facilitate an efficient recovery from major disasters, including arbitration by an independent review panel, to resolve disputes relating to Public Assistance projects. This final rule establishes an option for arbitration under the Public Assistance Program administered by the Federal Emergency Management Agency (FEMA). The option allows applicants to file for arbitration, instead of a second appeal under FEMA's current Public Assistance Program. The requests for review under the DRPP must be submitted by December 31, 2015. This final rule provides the procedures and the standard of review that FEMA will apply under the arbitration option.
William Roche, Infrastructure Branch Chief, Recovery Directorate, Federal Emergency Management Agency, 500 C Street SW., Washington, DC, 20472–3100, Phone: (202) 212–2340 or Email:
This section provides a concise description of the major provisions in this final rule. The Federal Emergency Management Agency (FEMA) also provides a summary of the costs and benefits of this final rule in this section.
FEMA currently authorizes a two-level appeal process for applicants that dispute a FEMA determination related to an application for Public Assistance. Under the Public Assistance Program, FEMA awards grants to State and local governments, Indian Tribal governments, and certain private nonprofit organizations (applicants) to assist them in responding to and recovering from Presidentially declared emergencies and major disasters. The final rule will add a new section at section 206.10, to 44 CFR Part 206. This new section will provide the procedures under which an applicant may request the use of arbitration instead of a second appeal under FEMA's Public Assistance Program.
In order to facilitate an efficient recovery from major disasters, section 1105 of the Sandy Recovery Improvement Act of 2013 (SRIA) directs FEMA to establish the Dispute Resolution Pilot Program (DRPP). This final rule pertains to SRIA's specific requirement that FEMA provide the option of arbitration by an independent review panel to Public Assistance applicants. Arbitration by an independent review panel will only be available for disputes related to disasters declared on or after October 30, 2012, in an amount equal to or greater than $1,000,000, for projects with a non-Federal cost share requirement (i.e.. the grantee/subgrantee have a State/Tribal/local cost share requirement), and for applicants that have completed a first appeal pursuant to 44 CFR 206.206. The arbitration decisions will be binding. The authority for section 1105 of SRIA sunsets on December 31, 2015; therefore, the requests for review under the DRPP must be submitted by December 31, 2015.
Section 1105 of SRIA
This rule provides the procedures FEMA and the independent review panels will apply to requests for arbitration under the DRPP, including deadlines for filing the requests, where the requests must be filed, the documents each party must submit, the manner and timing by which the independent review panel will set up preliminary conferences and hearings, how the independent review panel will evaluate any jurisdictional challenges, a standard of review to be applied at the hearings, and the timing of the independent review panel's decisions.
As this rule provides the option for arbitration instead of a second appeal, it imposes no mandatory costs on the public. FEMA estimates an DRPP annual average net cost of $1,392,147 based on an estimated average 20 arbitration requests per year and costs associated with initial arbitration processing, preliminary administrative conferences, oral hearings, jurisdictional challenges, frivolous requests, and cost savings associated with second appeals not completed in favor of arbitration. This cost includes a $401,142 applicant net cost, $60,937 grantee net cost, and $930,068 FEMA net cost (including independent review panel costs).
Benefits of this rule include providing flexibility for applicant recourse and a likely increase in applicant satisfaction through the use of an independent panel. It also institutes a streamlined process that clearly identifies areas/issues in dispute and encourages the use of arbitration when appropriate, thereby increasing the speed at which disputes are resolved. Furthermore, information from the pilot will help determine if arbitration should be provided as a permanent option in the future.
FEMA uses the net annual average cost identified above to calculate an DRPP total cost of $3.5 million (undiscounted) for the 2.5 years of the pilot program. At a 7 percent discount rate, the total cost equals $3.2 million and $1.4 million annualized. The summary table below presents a summary of the benefits and costs of the rule.
II. Background
On January 29, 2013, President Obama signed into law the Sandy Recovery Improvement Act of 2013
The arbitration process available under the DRPP is separate and distinct from the arbitration process established by the Arbitration for Public Assistance Determinations Related to Hurricanes Katrina and Rita (Disasters DR–1603, DR–1604, DR–1605, DR–1606, and DR–1607) final rule. See 74 FR 44761, Aug. 31, 2009, 44 CFR 206.209. The differences between the Hurricanes Katrina and Rita arbitration process and the DRPP include, but are not limited to: (1) The Hurricanes Katrina and Rita arbitration process is limited to just Hurricanes Katrina and Rita claims; (2) there is no sunset date for the Hurricanes Katrina and Rita arbitration process; (3) the amount in dispute for the Hurricanes Katrina and Rita arbitration process is $500,000, whereas the amount in dispute for the DRPP is $1,000,000; (4) there is no standard of review specified for the Hurricanes Katrina and Rita arbitration process, whereas the standard of review for the DRPP is arbitrary, capricious, or an abuse of discretion; (5) the Hurricanes Katrina and Rita arbitration process does not require the applicant to complete a first appeal under 44 CFR 206.206, whereas the DRPP does require the applicant to complete a first appeal; and (6) the DRPP limits the evidence to be presented to the administrative record that was established as of the first appeal, whereas the Hurricanes Katrina and Rita arbitration process does not limit the evidence that may be presented. Despite these differences, various aspects of the Katrina and Rita Arbitration Program provide insight into how the DRPP may operate, such as the frequency of in-person hearings, number of participants at preliminary administrative conferences and hearings, and time spent preparing arbitration materials. FEMA has used such information to help inform its economic analysis.
Under the Public Assistance Program, authorized by the Robert T. Stafford Disaster Relief and Emergency Assistance Act
The Public Assistance Program provides Federal funds for debris removal, emergency protective measures, and permanent restoration of infrastructure. When the President declares an emergency or major disaster declaration authorizing the Public Assistance Program, that presidential declaration automatically authorizes FEMA to accept applications from eligible applicants under the Public Assistance Program. To apply for a grant under the Public Assistance Program, the eligible applicant must submit a Request for Public Assistance to FEMA through the grantee, which is usually the State but may be an Indian Tribal government. An eligible applicant may use FF–009–0–49, to apply for public assistance. Upon award, the grantee notifies the applicant of the award, and the applicant becomes a subgrantee.
Project Worksheets for large projects are developed by a FEMA Project Specialist, working with a grantee representative and the applicant, and are submitted directly to a FEMA Public Assistance Crew Leader for review and processing. A Project Worksheet is the primary form used to document the location, damage description and dimensions, scope of work, and cost estimate for a project. Although large projects are funded on documented actual costs, work typically is not complete at the time of project formulation, Project Worksheet development, and approval. Therefore, FEMA obligates large project grants based on estimated costs and relies on financial reconciliation at project closeout for final costs. The obligation process is the process by which funds are made available to the grantee. The funds reside in a Federal account until drawn down by the grantee and disbursed to the applicant, unless partially or otherwise deobligated for reasons including, but not limited to, discrepancies between estimated and actual costs, updated estimates, a determination that a prior eligibility determination was incorrect, additional funds received from other sources that could represent a prohibited duplication of benefits, or expiration of the period of performance.
At times an applicant/grantee or applicant may disagree with FEMA regarding a determination related to their request for Public Assistance. Such disagreements may include, for instance, whether an applicant, facility, item of work, or project is eligible for Public Assistance; whether approved costs are sufficient to complete the work; whether a requested time extension was properly denied; whether a portion of the cost claimed for the work is eligible; or whether the approved scope of work is correct. In such circumstances, the applicant may appeal FEMA's determination. See 44 CFR 206.206.
Traditionally, under the appeals procedures in 44 CFR 206.206, an
The applicant must file an appeal with the grantee within 60 days of the appellant's receipt of a notice from FEMA of the Federal determination that is being appealed. The applicant must provide documentation to support the position of the appeal. In this documentation, the applicant will specify the monetary amount in dispute and the provisions in Federal law, regulation, or policy with which the applicant believes the initial action by FEMA was inconsistent. The grantee reviews and evaluates the appeal documentation. The grantee then prepares a written recommendation on the merits of the appeal and forwards that recommendation to the FEMA Regional Administrator within 60 days of the grantee's receipt of the appeal from the applicant.
The FEMA Regional Administrator reviews the appeal and takes one of two actions: (1) Renders a decision on the appeal and informs the grantee of the decision; or (2) requests additional information. If the appeal is granted, the FEMA Regional Administrator takes appropriate action, such as approving additional funding or sending a Project Specialist to meet with the appellant to determine additional eligible funding.
If the FEMA Regional Administrator denies the appeal, the applicant may submit a second appeal. The applicant must submit the second appeal to the grantee within 60 days of receiving notice of the FEMA Regional Administrator's decision on the first appeal. The grantee must forward the second level appeal with a written recommendation to the FEMA Regional Administrator within 60 days of receiving the second appeal. The FEMA Regional Administrator will forward the second appeal for action to the FEMA Assistant Administrator for Recovery as soon as practicable.
The FEMA Assistant Administrator for Recovery reviews the second appeal and renders a decision or requests additional information from the applicant. In a case involving highly technical issues, FEMA may request an independent scientific or technical analysis by a group or person having expertise in the subject matter of the appeal. Upon receipt of requested information from the applicant and any other requested reports, FEMA is required by regulation to render a decision on the second appeal within 90 days. As stated in 44 CFR 206.206(e)(3), this decision constitutes the final administrative decision of FEMA.
The rule implements the DRPP program required by SRIA and sets out the Program's procedures, so that applicants may request the use of binding arbitration instead of the second administrative appeal process set out in 44 CFR 206.206.
FEMA defines the term
The term
FEMA defines the term
(i) an individual or entity unaffiliated with the dispute (which may include a Federal agency, an administrative law judge, or a reemployed annuitant who was an employee of the Federal Government) selected by the Administrator; and (ii) responsible for identifying and maintaining an adequate number of independent experts qualified to review and resolve disputes under [section 1105 of SRIA.]
FEMA defines the term
The term
FEMA defines the term
FEMA defines
The DRPP will only be available to applicants if the dispute is for Public Assistance funding provided under disasters declared on or after October 30, 2012. As required by section 1105(a)(2)(B) of SRIA, the legitimate amount in dispute must be equal to or greater than $1,000,000. The legitimate amount in dispute is determined based on the difference between the funding amount sought by the applicant as reimbursable under the Public Assistance Program for a project and the funding amount FEMA has determined eligible for a project. The dollar amount for the legitimate amount in dispute will be adjusted annually to reflect changes in the Consumer Price Index for all Urban Consumers published by the Department of Labor. FEMA will publish a
As required by section 1105(a)(2)(C) of SRIA, the project must have a cost-share such that the applicant and/or the grantee bear a portion of the costs. As required by section 1105(a)(2)(D) of SRIA, the applicant must have received a decision on a first appeal, and choose to file an arbitration instead of filing a second appeal pursuant to 44 CFR 206.206. The DRPP is a voluntary program; as such, the applicant may still file a second appeal pursuant to 44 CFR 206.206. However, the applicant must make a choice: it may either file a second appeal pursuant to 44 CFR 206.206 or an arbitration pursuant to the DRPP, but may not pursue both options.
The governing rules are found within sections 403, 406, or 407 of the Stafford Act. Further, the dispute will be decided pursuant to FEMA's interpretations of those sections of the Stafford Act. These interpretations may include, but are not limited to, 44 CFR Part 13; 44 CFR Part 206; the FEMA Public Assistance Guide (FEMA Publication 321); the FEMA Public Assistance Digest (FEMA Publication 322); policies published in the 9500 series related to FEMA's Public Assistance Program; any applicable Public Assistance guidance, fact sheets, or standard operating procedures; evidence of FEMA's practical applications of those policies to other applicants with similar requests for Public Assistance; and Federal caselaw interpreting FEMA's Public Assistance Program.
Arbitration is only available for any Public Assistance funding dispute arising from disasters declared on or after October 30, 2012. Further, arbitration procedures are only available if the applicant chooses to file an arbitration instead of filing a second appeal under 44 CFR 206.206.
Historically, FEMA has interpreted new statutory authorizations that lack retroactive language to apply to all disaster declarations occurring on or after the date of enactment. Section 1105 of SRIA, however, is included in an act expressly intended to improve recovery from Hurricane Sandy and it is likely that Congress intended FEMA to apply section 1105 of SRIA to disputes arising from the disasters declared for Hurricane Sandy (October 30, 2012), even if that disaster declaration has already occurred, and in future disasters. In addition, because arbitration is optional, applicants can continue to use previously promulgated procedures and would not be negatively impacted by this arbitration rule, even though the rule is being promulgated after the declaration has occurred.
To file a Request for Arbitration, an applicant must electronically submit the form to FEMA, the grantee, and the arbitration sponsor. FEMA will provide the applicants with the specific, required information to make such electronic submissions in the first appeal determination.
FEMA will provide a copy of the administrative record to the applicant, the grantee, and the arbitration sponsor, 15 calendar days after it receives the Request for Arbitration. The administrative record will constitute the whole of the evidence that may be considered by the panel when it makes a determination on the claim. This administrative record may include, but is not limited to, Project Worksheets (all versions) and supporting backup documentation, correspondence, photographs, and technical reports.
The grantee must submit the name and address of the grantee's chosen authorized representative(s) within 15 calendar days of receipt of the Request for Arbitration. The grantee may also include a written recommendation in support or opposition to the applicant's Request for Arbitration.
The applicant will provide a statement of claim in order to clarify the disputed aspects of the first appeal determination. The applicant must cite to specific sections of the administrative record to clarify the issues, and specifically must identify which statutes, regulations, policies, or guidance support their claim.
Within 30 calendar days of receipt of the applicant's statement of claim, FEMA will provide a memorandum in support of its position and the name and address of its authorized representative.
As required by section 1105(b)(3)(C) of SRIA, FEMA will choose an arbitration sponsor that is unaffiliated with the dispute to ensure independence of the arbitration process. FEMA may select a sponsor that is a commercial entity through a competitive procurement process or it may select a sponsor from another Federal Agency or entity. This sponsor will be responsible for choosing the panel which will be comprised of three members who are qualified to review and resolve disputes under section 1105 of SRIA. The arbitrators must be neutral and independent and must not have had any prior involvement with the contested appeal.
SRIA specifically provides FEMA authority to establish independent review panels as part of its appeals process. As such, it is important to allow the parties to assess whether the selected arbitrators are impartial and independent.
This paragraph sets forth the procedures by which a party may challenge the impartiality or independence of the arbitrators, if circumstances exist that give rise to justifiable doubt as to the arbitrator's impartiality or independence. The procedures are based on an industry standard. A party challenging an arbitrator will send notice stating the reasons for the challenge. The other party will have the right to respond to the challenge. The other party may agree to the challenge and in such circumstances the arbitration sponsor will appoint a replacement arbitrator. If the other party does not agree to the challenge and the challenged arbitrator does not withdraw, the decision on the challenge will be made by the arbitration sponsor. If the arbitration sponsor orders the withdrawal of the challenged arbitrator, the arbitrator sponsor will appoint a replacement arbitrator.
The preliminary conference will be held within 15 calendar days of receipt of FEMA's response to the applicant's statement of claim. The parties will have the opportunity to discuss the conduct of the hearing, such as whether there will be witnesses, the nature and duration of witness testimony, whether the parties will make additional statements, when the hearing will take place, and any preliminary requests, including a request for an in-person hearing. The panel will memorialize the preliminary conference in a scheduling order setting forth the agreements the parties reached and the deadlines the panel set during the preliminary conference.
The panel may consider jurisdictional and arbitrability challenges to the Request for Arbitration. Jurisdictional and arbitrability challenges include, but are not limited to, disputes over whether the Request for Arbitration is appropriately filed according to the scope (Section A), applicability (Section C), and limitations (Section E) of this section and whether the applicant has filed a timely Request for Arbitration. The panel may suspend the arbitration proceedings while it considers the challenge, and may dismiss the request prior to any hearing if the panel determines the challenge has merit.
This paragraph describes the hearings that may take place under this section and specifically allows for hearings in person or by teleconference, such that all parties may hear all other participants. The applicant selects whether the hearing is in-person or via
This paragraph sets forth the standard of review for the hearings. The panel will only set aside the agency determination if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. In the case of a FEMA finding of material fact adverse to the applicant on the first appeal, the panel will only set aside or reverse such a finding if the finding was clearly erroneous.
This paragraph prohibits ex parte communication between the panel and a party. This means that neither the applicant, the grantee, nor FEMA may communicate with an arbitrator without the participation of the other parties or their representatives. If a party violates this provision, the panel will direct the violating part to write a memorandum of the communication that will be included in the record. The panel will give the non-violating party an opportunity for rebuttal. The panel may require the party who engages in an unauthorized ex parte communication to show cause why the panel should continue the matter instead of finding in favor of the opposing party as a result of the improper conduct.
The panel must issue a written and reasoned decision that sets forth the findings of fact and conclusions of law within 60 days of the hearing. If the applicant does not request a hearing, the panel must issue a written and reasoned decision within 60 calendar days of administrative conference. The majority decision of the panel will be in writing, signed by each member of the panel in agreement with the decision. A dissenting member may file a separate written dissent. The decision by the panel is binding and is not subject to judicial review, except as permitted by 9 U.S.C. 10 of the Federal Arbitration Act.
FEMA will pay the fees associated with the panel including arbitrator compensation, and the arbitration facility costs, if any. However each party will be responsible for its own expenses, including but not limited to: attorney's fees, expert witness fees, copying costs, and travel or other expenses associated with the parties and all witnesses attending the hearing. Any other expenses not listed in this paragraph will be paid by the party who incurred the expense.
The panel will deny any frivolous request, defined as the applicant knew or reasonably should have known that its actions lack an arguable basis in law, policy, or in fact. An example of a frivolous claim is one where FEMA has informed the applicant that specific information is required in order to prove the applicant's claim and the applicant failed to provide the information in the project formulation process or first appeal process. An applicant determined to have submitted a frivolous claim will be directed to pay the fees associated with the panel including arbitrator compensation, and the arbitration facility costs, if any, to prevent the inappropriate use of Federal funds for arbitrations for claims.
This section addresses the sunset provision in the SRIA which provides that an applicant cannot make a request for review by the panel under this section after December 31, 2015. However, pursuant to this rule, FEMA will continue to process and finalize any proper request made on or before December 31, 2015.
The Administrative Procedure Act (APA) requires an agency to publish a rule for public comment prior to implementation. 5 U.S.C. 553. The APA, however, provides an exception to the notice and comment requirements for rules of agency procedure or practice. 5 U.S.C. 553(b)(3)(A).
This final rule implements section 1105 of SRIA by detailing how a Public Assistance applicant may request arbitration instead of the currently offered second appeal. This final rule is a procedural rule because it is an agency rule of practice governing the conduct of proceedings. It establishes procedures for making an arbitration request and the procedures FEMA will follow in providing an arbitration decision. The rule does not affect eligibility under the Public Assistance Program; rather, it adds an option for review of Public Assistance determinations to expedite recovery efforts by providing greater flexibility within the Public Assistance Program. FEMA already provides for review determinations on public assistance grants through the appeal provisions of 44 CFR 206.206. This final rule simply provides an alternate procedure for seeking such a review of FEMA determinations.
This does not confer any substantive rights, benefits, or obligations and only sets out the agency's procedure for how to voluntarily request an arbitration. Since this rule is procedural in nature, it is excepted from the notice and comment requirements under 5 U.S.C. 553(b)(A). FEMA finds there is good cause not to require a 30-day delayed effective date because delaying implementation of the rule by 30 days reduces the opportunity for applicants to fully participate in this time-limited pilot program. 5 U.S.C. 553(d)(3).
FEMA has prepared and reviewed this rule under the provisions of Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, Oct. 4, 1993) as supplemented by Executive Order 13563, “Improving Regulation and Regulatory Review” (76 FR 3821, Jan. 21, 2011). Executive Orders 13563 and 12866 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866. Accordingly, the rule has not been reviewed by the Office of Management and Budget
This rule establishes the procedures for the DRPP which provides an option for applicants in the FEMA Public Assistance Program to file for arbitration when they want to dispute a FEMA eligibility determination that involves an amount in dispute greater than or equal to $1,000,000. Eligibility disputes are presently resolved through a two level administrative appeals process within FEMA, and arbitration will be an option to applicants instead of a second appeal. This rule is entirely voluntary. By statute, the DRPP will accept Requests for Arbitration until December 31, 2015.
Traditionally, under the appeals procedures in 44 CFR 206.206, an eligible applicant may appeal any determination made by FEMA related to an application for or the provision of Public Assistance. There are two levels of appeal; the first level appeal is to the FEMA Regional Administrator and the second level appeal is to the FEMA Assistant Administrator for Recovery. Typical appeals involve disputes regarding whether an applicant, facility, item of work, or project is eligible for Public Assistance; whether approved costs are sufficient to complete the work; whether a requested time extension was properly denied; whether a portion of the cost claimed for the work is eligible; or whether the approved scope of work is correct. The first appeal process will be the same for all applicants. Under this rule, applicants who seek further review of the first appeal will have the option of choosing a second appeal or arbitration. The second appeal process is similar to the first appeal process, but constitutes a review of the first appeal, is considered at FEMA headquarters, and the decision on the second appeal is the final administrative decision of the Agency. Despite some similarities, arbitrations under the DRPP will include a few procedural differences to second appeals. Key differences include a formal process to interact with FEMA and provide explanatory information (e.g., statement of claim) as well as the opportunity to interact and present one's case to an independent panel. See Table 2 for a comparison of the baseline second appeals process to the DRPP.
To estimate second appeal applicants who may choose arbitration, FEMA uses disaster related second appeals received in FY 2011 and FY 2012 with amounts in dispute greater than or equal to $1,000,000 (adjusted for
FEMA uses its experience from arbitrations statutorily mandated (section 601 of the American Recovery and Reinvestment Act of 2009, Public Law 111–5, 123 Stat. 115 (Feb. 17, 2009, 26 U.S.C. 1 note)) and codified in 44 CFR 206.209 for the Hurricanes Katrina and Rita disasters to help inform many of its estimates. In particular, FEMA's experiences related to Mississippi arbitrations—where the relevant Public Assistance Program is almost completed, the issues encountered have involved all phases of disaster operations, and the disputes are comparable to what FEMA historically encounters—has been particularly useful in informing our estimates. To calculate the DRPP costs, FEMA estimates average annual costs associated with all aspects of the arbitration process, including initial arbitration processing, preliminary administrative conferences, oral hearings, jurisdictional challenges, and frivolous requests.
Initial arbitration processing costs largely include time spent by applicants, grantees, and FEMA developing and providing process documentation. Using the existing second appeal information collection (1660–0017) as a guide, FEMA estimates an applicant will spend 1 hour of a State government management employee's time (or equivalent) submitting a Request for Arbitration and a grantee will spend 2 hours of a State government management employee's time (or equivalent) providing a recommendation. In addition, based on its experience from Hurricane Katrina and Rita Mississippi arbitrations, FEMA estimates that an applicant's authorized representative will spend approximately 40 hours composing the statement of claim. Also based on Hurricane Katrina and Rita Mississippi arbitration experience, FEMA estimates the equivalent of a General Service (GS) 11 employee located in Washington, DC will spend 2 hours processing the aforementioned material and the equivalent of a GS 14 employee located in Washington, DC will spend 40 hours composing its memorandum of response. The estimated number of arbitration requests and associated wage rates are applied to the hour estimates for an average annual cost of $131,659.
FEMA anticipates that all Requests for Arbitration will require a preliminary administrative conference with the selected panel. Preliminary administrative conference costs include applicant, grantee, and FEMA participant time spent preparing for the conference plus time actually in conference. The number of participants is a key cost contributor. Based on Hurricane Katrina and Rita Mississippi arbitrations, FEMA estimates conferences will last 1 hour and each participant will spend 2 hours preparing for the conference. Also based on Hurricane Katrina and Rita Mississippi arbitrations, FEMA estimates an average of 3 applicant participants (authorized representative), 2 grantee participants (State government management employee), and 3 FEMA participants (GS 14 (2 from Washington, DC)). The estimated number of conferences and associated wage rates are applied to the hour estimates and the number of participants for an average annual cost of $34,198. The benefits of a preliminary administrative conference include addressing any prehearing questions and matters, including conduct of the arbitration, clarification of the disputed issues, request for disqualification of an arbitrator (if applicable), and any other preliminary matters.
Based on the Hurricane Katrina and Rita Mississippi arbitrations, FEMA estimates that 60 percent (9/15 = 0.6) of all Requests for Arbitration will result in oral hearings, and, last 2 days. Oral hearing costs include applicant, grantee, and FEMA participant time preparing for the hearing plus time actually spent in the hearing. The number of participants is a key cost contributor. Based on Hurricane Katrina and Rita Mississippi arbitrations, FEMA estimates an average of 5 applicant participants (2 authorized representatives plus 3 witnesses (State government management employee)), 1 grantee participant (State government management employee), and 6 FEMA participants (GS14 (1 from Washington, DC)). Furthermore, based on experience from Hurricanes Katrina and Rita Mississippi arbitrations, FEMA estimates that all participants will appear in-person.
The FEMA employees who typically decide second appeals and the litigators who will defend the Agency will be based out of FEMA's Washington, DC office. The closest facility the arbitration sponsor maintains near Washington, DC is in Baltimore, MD. Further, based on the current disaster activity, FEMA anticipates that a significant number of arbitration requests that will be eligible for the DRPP will arise out of FEMA Region II (NY, NJ, PR, VI). In addition, the arbitration sponsor's New York facility is larger and will hold more participants, if necessary. Therefore, FEMA anticipates that half of the oral hearings will take place in New York, New York and half in Baltimore, MD. As such, FEMA also accounts for travel to New York and to Baltimore including airfare (round trip), lodging for 3 nights, meals and incidentals for 4 days, and travel time (2 days) per traveling participant. The meals and incidental expenses are comprised of 2 days of the oral hearing plus 2 days for the travel time, so the total is 4 days. Application of the estimated number of hearings to the associated wage rates, hour estimates, number of participants, and travel costs, and transcript costs results in an average annual cost of $698,177. Benefits of an oral hearing include the opportunity to enter into a dialogue with FEMA and present one's case to an independent panel, who will make a decision that is more likely to be accepted. FEMA expects presentation of an applicant's views and positions in a neutral forum will solidify the finding and reduce requests for reconsideration (despite first and second appeal limitations in regulations) and the solicitation of involvement from other entities at the local, State, or Federal level to advocate on behalf of an applicant regarding an unsatisfactory final determination.
Under this rule, jurisdictional or arbitrability challenges may be raised at any time and are typically addressed independently of an oral hearing. Such challenges include disputes over whether the Request for Arbitration is appropriately filed according to the scope, applicability, and limitations put forth by this rule and whether the applicant has filed a timely Request for Arbitration. Based on Hurricane Katrina and Rita Mississippi arbitrations, FEMA estimates a 13-percent likelihood of such challenges.
Frivolous requests for arbitration, as determined by the panel, will be denied and the applicant will be required to pay reasonable costs to FEMA relating to the review by the panel, including fees and expenses. Such costs will be assessed on a case-by-case basis. FEMA assumes the cost to address such requests is comparable to jurisdictional challenges—16 hours of an applicant's presenter(s) time (2 authorized representatives), 1 hour of a grantee's participant time (1 State government management employee), and 25 hours of FEMA's presenter time (2 GS14 (1 from Washington, DC)) on average. Based on experience from Hurricane Katrina and Rita arbitrations, FEMA estimates the potential for such claims is 1 out of 40 (2.5 percent). Application of the associated wage rates results in an annual average frivolous request cost of $3,024. This provision discourages the use of the arbitration when inappropriate, by penalizing the filing of requests without merit.
In addition, FEMA estimates cost savings associated with avoided second appeals for applicants, grantees, and FEMA, because arbitration must be selected instead of a second appeal. Based on FEMA's existing Public Assistance Program Information Collection Request (1660–0017), FEMA estimates a second appeal request takes a State government management employee approximately 2 hours and a grantee recommendation takes a State government management employee approximately 1 hour. In addition, FEMA's Recovery Office estimates that additional information will be necessary approximately 33 percent of the time (
Furthermore, FEMA would incur costs associated with providing panels through an arbitration sponsor. Consistent with section 1105(b)(3)(C) of SRIA, FEMA intends to have arbitration services provided by the U.S. Coast Guard's Administrative Law Judge (ALJ) Program. Based on the prior costs of cases handled by the Coast Guard ALJ Program, FEMA estimates that the cost of arbitration services will be approximately $600,000 annually.
The Dispute Resolution Pilot Program total annual average cost equals $1,392,147. See Table 3 for details.
Based on the Dispute Resolution Pilot Program annual average costs above, FEMA calculates a total pilot program cost of $3,480,368 over the DRPP's duration: $3,213,101 discounted at 7 percent ($1,445,344 annualized) and $3,359,905 discounted at 3 percent ($1,415,041 annualized). See Table 4 for details.
The anticipated overarching benefits of the pilot include increased flexibility and the perception of objectivity, which likely increases acceptance of final decisions. In addition, the time to resolve disputes may be faster than the current second appeal process. For instance, when comparing maximum process step timeframes for second appeals (44 CFR 206.206) and maximum process step timelines identified in this rule, the total number of days for arbitration with an oral hearing (225 days) versus a second appeal with one additional information request (270 days) is 45 days faster (270 days−225 days = 45 days). Furthermore, the information gathered from the pilot will inform the Comptroller General's recommendation to Congress on whether an arbitration program should be implemented permanently. See Table 5 for a comparison of pilot program net costs and benefits.
While the provision of arbitration by a panel is statutorily mandated, based on the subsequent analysis, FEMA believes that the benefits of the rule justify the costs.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601–612), and section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104–121, 110 Stat. 847, 858–9 (Mar. 29, 1996) (5 U.S.C. 601 note) require that special consideration be given to the effects of proposed regulations on small entities. The RFA mandates that an agency conduct an RFA analysis when an agency is “required by section 553 . . . to publish general notice of proposed rulemaking for any proposed rule.” 5 U.S.C. 603(a). An RFA analysis is not required when a rule is exempt from notice and comment rulemaking under 5 U.S.C. 553(b). FEMA has determined that this rule is exempt from notice and comment rulemaking because it is a rule of agency procedure. See 5 U.S.C. 553(b)(3)(A). Therefore, an RFA analysis under 5 U.S.C. 603 is not required for this rule.
As previously discussed, this rule establishes the procedures for a Dispute Resolution Pilot Program at 44 CFR 206.210, which provides an option for applicants in the FEMA Public Assistance Program to file for arbitration when they want to dispute a FEMA eligibility determination that involves an amount in dispute greater than or equal to $1,000,000. This rule is entirely voluntary and has no mandatory costs to affected applicants.
The Unfunded Mandates Reform Act of 1995, Public Law 104–4, 109 Stat. 48 (Mar. 22, 1995) (2 U.S.C. 1501
As required by the Paperwork Reduction Act of 1995 (PRA), Public Law 104–13, 109 Stat. 163, (May 22, 1995) (44 U.S.C. 3501
Section 102 of the National Environmental Policy Act of 1969 (NEPA), Public Law 91–190, 83 Stat. 852 (Jan. 1, 1970) (42 U.S.C. 4321
Rulemaking is a major Federal action subject to NEPA. The List of exclusion categories at 44 CFR 10.8(d)(2)(ii) excludes the preparation, revision, and adoption of regulations from the preparation of an EA or EIS, where the rule relates to actions that qualify for categorical exclusions.
Action taken or assistance provided under sections 403, 406, and 407 of the Stafford Act are statutorily excluded from NEPA and the preparation of EIS and EA by section 316 of the Stafford Act. 42 U.S.C. 5159; 44 CFR 10.8(c). NEPA implementing regulations governing FEMA activities at 44 CFR 10.8(d)(2)(ii) categorically exclude the preparation, revision, and adoption of regulations from the preparation of an EA or EIS, where the rule relates to actions that qualify for categorical exclusions. Action taken or assistance provided under sections 403 and 407 of the Stafford Act are categorically excluded under 44 CFR 10.8(d)(2)(xix). This final rule establishes an option for arbitration under FEMA's Public Assistance Program. Arbitration is an administrative action for FEMA's Public Assistance Program. Therefore, the activity this rule applies to meets FEMA's Categorical Exclusion in 44 CFR 10.8(d)(2)(i). Because no other extraordinary circumstances have been identified, this rule does not require the preparation of either an EA or an EIS as defined by NEPA.
Executive Order 13175, “Consultation and Coordination With Indian Tribal Governments,” 65 FR 67249, Nov. 9, 2000, applies to agency regulations that have Tribal implications, that is, regulations that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. Under this Executive Order, to the extent practicable and permitted by law, no agency will promulgate any regulation that has Tribal implications, that imposes substantial direct compliance costs on Indian Tribal governments, and that is not required by statute, unless funds necessary to pay the direct costs incurred by the Indian Tribal government or the Tribe in complying with the regulation are provided by the Federal Government, or the agency consults with Tribal officials.
Indian Tribes have the same opportunity to participate in the DRPP as other eligible applicants; however, given the participation criteria of the DRPP and its voluntary nature, FEMA estimates only 10 to 30 requests for arbitration, per year, until the DRPP sunsets. As such, FEMA anticipates a very small number, if any Indian Tribes, will participate in the voluntary DRPP before it sunsets. As a result, FEMA does not expect the DRPP to have a substantial direct effect on one or more Indian tribes or impose direct compliance costs on Indian Tribal governments. Additionally, since FEMA anticipates a very small number, if any Indian Tribes will participate in the voluntary DRPP, FEMA does not expect the regulations to have substantial direct effects on the relationship between the Federal Government and Indian Tribes or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. Therefore, FEMA finds that this final rule complies with Executive Order 13175.
A rule has implications for federalism under Executive Order 13132, “Federalism” (64 FR 43255, Aug. 10, 1999), if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. FEMA has analyzed this final rule under Executive Order 13132 and determined that it does not have implications for federalism.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, “Governmental Actions and Interference With Constitutionally Protected Property Rights” (53 FR 8859, Mar. 18, 1988).
Under Executive Order 12898, as amended, “Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, Feb. 16, 1994), FEMA incorporates environmental justice into its policies and programs. Executive Order 12898 requires each Federal agency to conduct its programs, policies, and activities that substantially affect human health or the environment in a manner that ensures that those programs, policies, and activities do not have the effect of excluding persons from participation in, denying persons the benefit of, or subjecting persons to discrimination because of their race, color, or national origin or income level.
Implementation of section 1105 of SRIA will facilitate an efficient recovery from major disasters, including arbitration by an independent review panel, to resolve disputes relating to Public Assistance projects. This rulemaking deals only with Public Assistance projects, which provide for Federal funds for debris removal, emergency protective measures, and permanent restoration of infrastructure does not provide Federal funds directly to persons. Accordingly, this rulemaking does not implicate the Executive Order's provisions related to discrimination.
No action that FEMA can anticipate under this rule will have a disproportionately high and adverse human health or environmental effect on any segment of the population.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729, Feb. 7, 1996), to minimize litigation, eliminate ambiguity, and reduce burden.
This rule will not create environmental health risks or safety risks for children under Executive Order 13045, “Protection of Children From Environmental Health Risks and Safety Risks” (62 FR 19885, Apr. 23, 1997).
FEMA has sent this final rule to the Congress and to the Government Accountability Office under the Congressional Review of Agency Rulemaking Act, (“Congressional Review Act”), Public Law 104–121, 110 Stat. 873 (Mar. 29, 1996) (5 U.S.C. 804). This rule is not a “major rule” within the meaning of the Congressional Review Act.
Administrative practice and procedure, Coastal zone, Community facilities, Disaster assistance, Fire prevention, Grant programs-housing and community development, Housing, Insurance, Intergovernmental relations, Loan programs—housing and community development, Natural resources, Penalties, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Federal Emergency Management Agency amends 44 CFR part 206, subpart G, as follows:
Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121 through 5207; Homeland Security Act of 2002, 6 U.S.C. 101
(a)
(b)
(c)
(1) The legitimate amount in dispute is equal to or greater than $1,000,000, which sum the FEMA Administrator will adjust annually via a
(2) The applicant bears a non-Federal share of the cost; and,
(3) The applicant has received a decision on a first appeal, but not a decision on a second appeal, pursuant to § 206.206.
(d)
(e)
(2)
(3)
(f)
(2) An applicant must submit the Request for Arbitration no later than 15 calendar days of applicant's receipt of notice of the first appeal decision that is the subject of the arbitration request.
(g)
(h)
(i) Within 15 calendar days of receipt of the Request for Arbitration, the grantee must forward to FEMA the name and address of the grantee's authorized representative.
(ii) The grantee may submit a written recommendation in support or opposition of the applicant's claim via electronic submission simultaneously to the applicant, the arbitration sponsor, and FEMA.
(2)
(ii) The applicant will only include issues directly raised and decided in the first appeal and will also cite to applicable statutes, regulations, policies, or guidance in support of their claim.
(iii) The applicant must provide the written statement of claim via electronic submission simultaneously to FEMA, the grantee, and the arbitration sponsor.
(3)
(i)
(j)
(1) A party challenging an arbitrator will send notice stating the reasons for the challenge within 15 calendar days after being notified of that arbitrator's appointment or after becoming aware of the circumstances that give rise to the party's justifiable doubt as to that arbitrator's impartiality or independence.
(2) When an arbitrator has been challenged by a party, the other party will have the right to respond to the challenge within 15 calendar days after receipt of the notice of the challenge.
(3) The other party may agree to the challenge and in such circumstances the arbitration sponsor will appoint a replacement arbitrator. If the other party does not agree to the challenge and the challenged arbitrator does not withdraw, the decision on the challenge will be made by the arbitration sponsor. If the arbitration sponsor orders the withdrawal of the challenged arbitrator, the arbitrator sponsor will appoint a replacement arbitrator.
(k)
(1) A party must request a hearing to the panel no later than the time of the preliminary administrative conference.
(2) If a hearing is requested, the panel will set the date and place of any hearing and set a deadline for the parties to exchange witness lists. Within 10 calendar days of the preliminary conference, the independent review panel will issue a scheduling order which memorializes the matters heard at the conference and the upcoming deadlines.
(l)
(1) When jurisdiction or arbitrability has been challenged by a party, the other party will have the right to respond to the challenge within 15 calendar days after receipt of the notice of the challenge.
(2) The panel may suspend or continue the arbitration proceedings during the pendency of the challenge. The panel must rule upon the challenge prior to any hearing in the matter and will dismiss any matter that is untimely or outside the panel's jurisdiction. The panel's dismissal will be with prejudice and there will be no further arbitration of the issue giving rise to the Request for Arbitration.
(m)
(2)
(3)
(4)
(5)
(6)
(n)
(o)
(p)
(i) The panel will issue a written decision within 60 calendar days from the conclusion of the hearing.
(ii) If a hearing was not requested and approved, the panel will issue a written decision within 60 calendar days from the preliminary administrative conference.
(2)
(3)
(4)
(q)
(2)
(r)
(s)
Environmental Protection Agency (EPA) and National Highway Traffic Safety Administration (NHTSA), Department of Transportation.
Partial withdrawal of direct final rule; direct final rule.
Because EPA and NHTSA, on behalf of the Department of Transportation, received adverse comment on certain elements of the Heavy-Duty Engine and Vehicle and Nonroad Technical Amendments direct final rule published on June 17, 2013, we are withdrawing those elements of the direct final rule and republishing the affected sections without those elements.
Effective August 16, 2013, EPA withdraws the amendments to 40 CFR 1037.104, 037.150, 1039.104, 1039.625, 1042.615, and 1068.240 published at 78 FR 36388 on June 17, 2013, and NHTSA withdraws the amendment to 49 CFR 535.5 published at 78 FR 36388 on June 17, 2013. The direct final rule amendments are effective August 16, 2013.
Lily Smith, Office of Chief Counsel, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590; telephone: (202) 366–2992. Angela Cullen, Environmental Protection Agency, Office of Transportation and Air Quality, Assessment and Standards Division, 2000 Traverwood Drive, Ann Arbor, Michigan 48105; telephone number: 734–214–4419; email address:
Because EPA and NHTSA received adverse comment on certain elements of the Heavy-Duty Engine and Vehicle and Nonroad Technical Amendments direct final rule published on June 17, 2013, at 78 FR 36370, we are withdrawing those elements of the direct final rule and republishing the affected sections without those elements. The withdrawal relates to four principal EPA provisions and one principal NHTSA provision. The EPA provisions are: (1) Test requirements for heavy-duty greenhouse gas emissions in 40 CFR part 1037, (2) optional chassis certification for heavy-duty greenhouse gas emissions in 40 CFR part 1037, (3) expanded technical hardship for equipment manufacturers installing nonroad diesel engines, and (4) the replacement engine exemption in 40 CFR part 1068, along with the corresponding changes to 40 CFR 1042.615. The NHTSA withdrawal relates to the provision for optional chassis certification for heavy-duty fuel efficiency requirements in 49 CFR 535.5(a)(6).
We stated in the direct final rule that if we received adverse comment by July 17, 2013 as to any part of the direct final rule, those parts would be withdrawn by publishing a timely notice in the
EPA published a parallel proposed rule on the same day as the direct final rule. The proposed rule invited comment on the substance of the direct final rule with respect to EPA's amendments to 40 CFR parts 1037, 1039, 1042, and 1068. EPA intends to consider the comments received and proceed with a new final rule, including but not limited to addressing the amendments that relate to replacement nonroad engines that are withdrawn by this notice. As stated in the parallel proposal, EPA will not institute a second comment period for the proposed action with respect to the provisions that are withdrawn by this notice. One adverse comment relates to EPA's provision in 40 CFR 1037.150(l) and NHTSA's provision in 49 CFR 535.5(a) (6). NHTSA may issue a notice of proposed rulemaking (NPRM) and provide another opportunity to comment for the withdrawn amendment to 49 CFR 535.5(a) (6). Both agencies would coordinate any final actions on 40 CFR 1037.150(l) and 49 CFR 535.5(a) (6). The amendments for which we did not receive adverse comment are not being withdrawn and will become effective on August 16, 2013, as provided in the June 17, 2013 direct final rule.
Accordingly, the amendments to 40 CFR 1037.104(d)(9)(i), 1037.104(d)(9)(iii), 1037.104(g)(3)(iv), 1037.104(g)(7), 1037.150(l), 1039.104(g), 1039.625(m), 1042.615, and 1068.240 introductory text and paragraphs (a) through (d) published on June 17, 2013 (78 FR 36388), are withdrawn by EPA as of August 16, 2013, and the amendment to 49 CFR 535.5 published on June 17, 2013 (78 FR 36388) is withdrawn by DOT as of August 16, 2013.
Administrative practice and procedure, Air pollution control, Confidential business information, Environmental protection, Incorporation by reference, Labeling, Motor vehicle pollution, Reporting and recordkeeping requirements, Warranties.
Environmental protection, Administrative practice and procedure, Air pollution control, Confidential business information, Imports, Labeling, Penalties, Reporting and recordkeeping requirements, Warranties.
Environmental protection, Administrative practice and procedure, Air pollution control, Confidential business information, Imports, Labeling, Penalties, Reporting and recordkeeping requirements, Vessels, Warranties.
Environmental protection, Administrative practice and procedure, Confidential business information, Imports, Motor vehicle pollution, Penalties, Reporting and recordkeeping requirements, Warranties.
Fuel economy.
For the reasons set forth in the preamble, the Environmental Protection Agency is amending title 40, chapter I of the Code of Federal Regulations as follows:
42 U.S.C. 7401–7671q.
The revisions and addition read as follows:
(a) * * *
(2) Using the appropriate work factor, calculate a target value for each vehicle subconfiguration (or group of subconfigurations allowed under paragraph (a)(4) of this section) you produce using one of the following equations, or the phase-in provisions in § 1037.150(b), rounding to the nearest 0.1 g/mile:
(d) * * *
(2) The following general credit provisions apply:
(i) Credits you generate under this section may be used only to offset credit deficits under this section. You may bank credits for use in a future model year in which your average CO
(ii) Vehicles subject to the standards of this section are included in a single greenhouse gas averaging set separate from any averaging set otherwise included in 40 CFR part 86.
(iii) Banked CO
(4) The CO
(6) Credits are calculated using the useful life value (in miles) in place of “vehicle lifetime miles” specified in 40 CFR part 86, subpart S. Calculate a total credit or debit balance in a model year by adding credits and debits from 40 CFR 86.1865–12(k)(4), subtracting any CO
(i) Advanced technology credits according to paragraph (d)(7) of this section and § 1037.150(i).
(ii) Innovative technology credits according to paragraph (d)(13) of this section.
(iii) Early credits according to § 1037.150(a)(2).
(9) Calculate your fleet-average emission rate consistent with good engineering judgment and the provisions of 40 CFR 86.1865. The following additional provisions apply:
(i) Unless we approve a lower number, you must test at least ten subconfigurations. If you produce more than 100 subconfigurations in a given model year, you must test at least ten percent of your subconfigurations. For purposes of this paragraph (d)(9)(i), count carryover tests, but do not include analytically derived CO
(ii) The provisions of paragraph (g) of this section specify how you may use analytically derived CO
(iii) At least 90 percent of final production volume at the configuration level must be represented by test data (real, data substituted, or analytical).
(iv) Perform fleet-average CO
(A) Use CO
(B) Perform intermediate CO
(C) Perform intermediate CO
(D) Do not perform intermediate CO
(E) Determine fleet average CO
(12) The following definitions apply for the purposes of this section:
(i) Configuration means a subclassification within a test group based on engine code, transmission type and gear ratios, final drive ratio, and other parameters we designate. Transmission type means the basic type of the transmission (e.g., automatic, manual, automated manual, semi-automatic, or continuously variable) and
(ii) Subconfiguration means a unique combination within a vehicle configuration (as defined in this paragraph (d)(12)) of equivalent test weight, road-load horsepower, and any other operational characteristics or parameters that we determine may significantly affect CO
(iii) The terms “complete vehicle” and “incomplete vehicle” have the meanings given for “complete heavy-duty vehicle” and “incomplete heavy-duty vehicle”, respectively, in 40 CFR 86.1803.
(13) This paragraph (d)(13) applies for CO
(15) You must submit a final report within 90 days after the end of the model year. Unless we specify otherwise, include applicable information identified in 40 CFR 86.1865–12(l), 40 CFR 600.512, and 49 CFR 535.8(e). The final report must include at least the following information:
(i) Model year.
(ii) Applicable fleet-average CO
(iii) Calculated fleet-average CO
(iv) Number of credits or debits incurred and all values required to calculate those values.
(v) Resulting balance of credits or debits.
(vi) N
(vii) CH
(viii) HFC leakage score.
(g) Analytically derived CO
(1) Except as specified in paragraph (g)(2) of this section, use the following equation to calculate the ADC of a new vehicle from road load force coefficients (F0, F1, F2), axle ratio, and test weight:
(2) The purpose of this section is to accurately estimate CO
(i) You must apply the provisions of this section consistent with good engineering judgment. For example, do not use the equation in paragraph (g)(1) of this section where good engineering judgment indicates that it will not accurately estimate emissions. You may ask us to approve alternate equations that allow you to estimate emissions more accurately.
(ii) The analytically derived CO
(3) You may select, without our advance approval, baseline test data if they meet all the following criteria:
(i) Vehicles considered for the baseline test must comply with all applicable emission standards in the model year associated with the ADC.
(ii) You must include in the pool of tests considered for baseline selection all official tests of the same or equivalent basic engine, transmission class, engine code, transmission code, engine horsepower, dynamometer drive wheels, and compression ratio as the ADC subconfiguration. Do not include tests in which emissions exceed any applicable standard.
(iii) Where necessary to minimize the CO
(iv) Tests previously used during the subject model year as baseline tests in ten other ADC subconfigurations must be eliminated from the pool.
(v) Select the tested subconfiguration with the smallest absolute difference between the ADC and the test CO
(4) You may ask us to allow you to use baseline test data not fully meeting the provisions of paragraph (g)(3) of this section.
(5) Calculate the ADC rounded to the nearest 0.1 g/mile. Except with our advance approval, the downward adjustment of ADC from the baseline is limited to ADC values 20 percent below the baseline emission rate. The upward adjustment is not limited.
(6) You may not submit an ADC if an actual test has been run on the target subconfiguration during the certification process or on a development vehicle that is eligible to be declared as an emission-data vehicle.
(7) No more than 40 percent of the subconfigurations tested in your final CO
(8) Keep the following records for at least five years, and show them to us if we ask to see them:
(i) The pool of tests.
(ii) The vehicle description and tests chosen as the baseline and the basis for the selection.
(iii) The target ADC subconfiguration.
(iv) The calculated emission rates.
(9) We may perform or order a confirmatory test of any subconfiguration covered by an ADC.
(10) Where we determine that you did not fully comply with the provisions of this paragraph (g), we may require that you comply based on actual test data and that you recalculate your fleet- average emission rate.
(a) * * *
(2) This paragraph (a)(2) applies for regulatory sub-categories subject to the standards of § 1037.104. To generate early credits under this paragraph (a)(2) for any vehicles other than electric vehicles, you must certify your entire U.S.-directed fleet to these standards. If you calculate a separate fleet average for advanced-technology vehicles under § 1037.104(c)(7), you must certify your entire U.S.-directed production volume of both advanced and conventional vehicles within the fleet. Except as specified in paragraph (a)(4) of this section, if some test groups are certified after the start of the model year, you may generate credits only for production that occurs after all test groups are certified. For example, if you produce three test groups in an averaging set and you receive your certificates for those test groups on January 4, 2013, March 15, 2013, and April 24, 2013, you may not generate credits for model year 2013 for vehicles from any of the test groups produced before April 24, 2013. Calculate credits relative to the standard that would apply in model year 2014 using the applicable equations in 40 CFR part 86 and your model year 2013 U.S.-directed production volumes. These credits may be used to show compliance with the standards of this part for 2014 and later model years. We recommend that you notify us of your intent to use this provision before submitting your applications.
42 U.S.C. 7401–7671q.
(e)
(1) If you are using the provisions of paragraph (d)(4) of this section, engines must meet the applicable Tier 1 or Tier 2 emission standards described in 40 CFR 89.112.
(2) If you are using the provisions of paragraph (a)(2) of this section, engines must be identical in all material respects to engines certified under this part 1039 as follows:
(3) In all other cases, engines at or above 56 kW and at or below 560 kW must meet the appropriate Tier 3 standards described in 40 CFR 89.112.
(j)
42 U.S.C. 7401–7671q.
For the reasons set forth in the preamble, the National Highway Traffic Safety Administration is amending title 49, chapter V, of the Code of Federal Regulations as follows:
49 U.S.C 32901, delegation of authority at 49 CFR 1.95.
The revisions and additions read as follows:
(a) * * *
(4) * * *
(i) Manufacturers may choose voluntarily to comply early with fuel consumption standards for model years 2013 through 2015, as determined in paragraphs (a)(4)(iii) and (iv) of this section, for example, in order to begin accumulating credits through over-
(v) For model year 2013, a manufacturer can choose to comply with the standards in paragraph (a) of this section and generate early credits under § 535.7(b) by using the entire U.S.-directed production volume of vehicles other than electric vehicles as specified in 40 CFR 1037.150. The model year 2014 standards in paragraph (a) of this section apply for vehicles complying in model year 2013. If some test groups are certified by EPA after the start of the model year, the manufacturer may only generate credits under § 535.7(b) for the production that occurs after all test groups are certified in accordance with 40 CFR 1037.150 (a)(2).
(vi) For model year 2014, a manufacturer producing model year 2014 vehicles before January 1, 2014, may optionally elect to comply with these standards for a partial model year that begins on January 1, 2014, and ends on the day the manufacturer's model year would normally end if it meets the provisions in 40 CFR 1037.150(g).
(b) * * *
(2) * * *
(i) For model years 2013 through 2015, a manufacturer may choose voluntarily to comply early with the fuel consumption standards provided in paragraph (b)(3) of this section. For example, a manufacturer may choose to comply early in order to begin accumulating credits through over-compliance with the applicable standards. A manufacturer choosing early compliance must comply with all the vehicles and engines it manufacturers in each regulatory category for a given model year except as provided in paragraphs (b)(2)(iii) through (iv) of this section.
(iii) For model year 2013, a manufacturer can choose to comply with the standards in this paragraph (b) and generate early credits under § 535.7(c) by using the entire U.S.-directed production volume within any of its regulatory sub-categories of vehicles other than electric vehicles as specified in 40 CFR 1037.150. The model year 2014 standards in this paragraph (b) apply for vehicles complying in model year 2013. If some vehicle families within a regulatory subcategory are certified by EPA after the start of the model year, manufacturers may generate credits under § 535.7(c) only for production that occurs after all families are certified in accordance with 40 CFR 1037.150(a)(1).
(iv) For model year 2014, a manufacturer producing model year 2014 vehicles before January 1, 2014, may optionally elect to comply with these standards for a partial model year that begins on January 1, 2014, and ends on the day the manufacturer's model year would normally end if it meets the provisions in 40 CFR 1037.150(g).
(c) * * *
(2) * * *
(i) For model years 2013 through 2015, a manufacturer may choose voluntarily to comply early with the fuel consumption standards provided in paragraph (c)(3) of this section. For example, a manufacturer may choose to comply early in order to begin accumulating credits through over-compliance with the applicable standards. A manufacturer choosing early compliance must comply with all the vehicles and engines it manufacturers in each regulatory category for a given model year except as provided in paragraphs (c)(2)(iii) through (iv) of this section.
(iii) For model year 2013, a manufacturer can choose to comply with the standards in this paragraph (c) and generate early credits under § 535.7(c) by using the entire U.S.-directed production volume within any of its regulatory sub-categories of vehicles other than electric vehicles as specified in 40 CFR 1037.150. The model year 2014 standards in this paragraph (c) apply for vehicles complying in model year 2013. If some vehicle families within a regulatory subcategory are certified by EPA after the start of the model year, manufacturers may generate credits under § 535.7(c) only for production that occurs after all families are certified in accordance with 40 CFR 1037.150(a)(1).
(iv) For model year 2014, a manufacturer producing model year 2014 vehicles before January 1, 2014, may optionally elect to comply with these standards for a partial model year that begins on January 1, 2014, and ends on the day the manufacturer's model year would normally end if it meets the provisions in 40 CFR 1037.150(g).
(5)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
This final rule reopens an additional portion of the Georges Bank Closed Area to the harvest of Atlantic surfclams and ocean quahogs. This final
This rule is effective August 16, 2013.
An environmental assessment (EA) was prepared for this action that describes the final action and other alternatives considered, and provides an analysis of the impacts of the measures and alternatives. Copies of the EA are available on request from the NMFS Northeast Regional Administrator, John K. Bullard, 55 Great Republic Drive, Gloucester, MA 01930. The EA is also available online at
Jason Berthiaume, Fishery Management Specialist, phone (978) 281–9177, fax (978) 281–9135.
The Georges Bank (GB) Closed Area, located in the Exclusive Economic Zone east of 69°00′ W. longitude and south of 42°20′ N. latitude, has been closed to the harvest of surfclams and ocean quahogs since 1990 due to red tide blooms that cause paralytic shellfish poisoning (PSP). The closure was implemented based on advice from the U.S. Food and Drug Administration (FDA), after samples tested positive for the toxins (saxitoxins) that cause PSP. Shellfish contaminated with the toxins, if eaten in large enough quantity, can cause illness or death in humans.
Due to inadequate testing or monitoring of this area for the presence of PSP-causing toxins, the closure was made permanent in 1999. Since the implementation of the closure, NOAA's National Ocean Service has provided grants to the FDA, the states of Maine, New Hampshire, and Massachusetts, and a clam industry representative to collect water and shellfish samples from Federal waters off southern New England. NMFS has also issued exempted fishing permits (EFPs) since 2008 to surfclam and ocean quahog vessels to conduct research in the closure area.
Testing of clams in the area by the FDA in cooperation with NMFS and the fishing industry under the EFPs demonstrate that PSP toxin levels have been well below the regulatory limit established for public health and safety (FDA 2010).
On August 31, 2012, NMFS published a proposed rule in the
The area being reopened is defined in the table below and the remaining portion of the GB Closed Area will remain closed. The area identified by the coordinates contain both the area reopened with the interim final rule (77 FR 75057) and the additional area being reopened with this final rule.
The comment period for the interim final rule ended on February 19, 2013, and NMFS received 14 comments. One comment was against reopening any portion of the GB PSP Closed Area, but provided no supporting justification. The remaining 13 comments were in support of reopening additional portions of the GB Closed Area.
Further, most of the area in the Northeast corner, which was withdrawn in the interim final rule, is located in a relatively shallow (30–60 m) part of GB that is routinely highly disturbed by strong tidal currents and wave action from storms. Published studies of the effects of hydraulic clam dredges in high-energy, sandy habitats, such as those where clam fishing occurs, indicate that in this type of environment the affected physical and biological features of the seafloor can be expected to recover from the impacts of this gear in less than a year, and can actually recover within a matter of a few days or months. For this reason, NMFS agrees that the minimal or temporary impacts caused by the use of this gear would not have significant impacts on habitat in the affected area.
As noted above, in response to comments received on the proposed rule, the area that was reopened with the interim final rule was modified slightly from the proposed rule. The NEFMC submitted a comment on the proposed rule informing NMFS that its Habitat Oversight Committee is developing Essential Fish Habitat Omnibus Amendment 2, which may include potential HMAs that, if implemented, may spatially overlap with the areas proposed for reopening in the proposed rule. Because of the NEFMC concern, we modified the area that was reopened with the interim final rule to ensure that there was no overlap with any portion of the potential HMAs. The intent was to protect the potential HMAs from any additional disturbances, while also allowing the Atlantic surfclam/ocean quahog fleet to access as much of the proposed area as possible without compromising the proposed HMA.
The NEFMC also requested that we extend the comment period on the proposed rule for an additional 60 days to allow them time to compose a more formal comment. We did not extend the comment period on the proposed rule, but instead, we published an interim final rule, which included an additional 60-day comment period while also satisfying the industry's and the MAFMC's request to have the area reopened by the start of the Atlantic surfclam and ocean quahog fishing year on January 1, 2013.
The comment period on the interim final rule closed on February 19, 2013. We received an additional comment from the NEFMC, in which they rescinded their previous comment regarding concern with reopening the portion of the area that would overlap with the potential HMAs. Instead, the NEFMC requested that we reopen all portions of the GB PSP Closed Area that are open to other types of bottom-tending mobile gear.
In light of comments received on the interim final rule, we will reopen the portion of the closed area that was originally proposed, but which was not reopened based on the NEFMC's initial concern. The remainder of the GB PSP Closed Area will remain closed.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the Assistant Administrator for Fisheries, NOAA, has determined that this final rule is consistent with the Atlantic Surfclam and Ocean Quahog FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.
The Assistant Administrator for Fisheries, NOAA, is waiving the 30-day delayed effectiveness provision of the Administrative Procedure Act, pursuant to 5 U.S.C. 553(d)(1), because this is “a substantive rule which . . . relieves a restriction.” This rule imposes no new requirements or burdens on the public; to the contrary, it provides economic benefits to the fishery participants by reopening an additional area that has been closed to the harvest of surfclams and ocean quahogs since 1990 due to red tide blooms that cause PSP, without resulting in overfishing. Because recent testing in the GB Closed Area has demonstrated that PSP toxin levels were well below the regulatory limit established for public health and safety, continued closure of the area is not necessary and could unnecessarily restrict Atlantic surfclam and ocean quahog fishing.
Furthermore, the Assistant Administrator for Fisheries, NOAA has determined that there is good cause to waive the 30-day delay in effectiveness under 5 U.S.C. 553(d)(3). The GB PSP Closed Area has caused harvesting to be limited to the Mid-Atlantic, where Atlantic surfclam and ocean quahog stocks have recently become less abundant. A 30-day delay in effectiveness would continue to prohibit harvest from this portion of the GB PSP Closed Area and would continue to put pressure on Mid-Atlantic stocks. Waiving the 30-day delay would allow additional areas in the GB Closed Area to be reopened sooner, which could relieve fishing pressure on southern stocks and would allow for greater distribution of Atlantic surfclam and ocean quahog harvest effort in the region. We also received public comment on the proposed rule for this action that fishing is only being continued in the Mid-Atlantic region to maintain the market, and vessels may no longer be profiting. Thus, a delay in effectiveness could result in continued loss of revenue for the Atlantic surfclam and ocean quahog fishing fleet.
Failure to make this final rule effective upon publication will
The Office of Management and Budget has determined that this rule is not significant for purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this final rule will not have a significant economic impact on a substantial number of small entities. The factual basis for this certification was provided in the proposed rule for this action (77 FR 53163) and is not repeated here. No comments were received regarding the certification and NMFS has not received any new information that would affect its determination. As a result, a final regulatory flexibility analysis is not required and none has been prepared.
On June 20, 2013, the Small Business Administration (SBA) issued a final rule revising the small business size standards for several industries effective July 22, 2013 (78 FR 37398). The rule increased the size standard for Finfish Fishing from $4.0 to $19.0 million, Shellfish Fishing from $4.0 to $5.0 million, and Other Marine Fishing from $4.0 to $7.0 million. Pursuant to the Regulatory Flexibility Act, and prior to SBA's June 20, 2013, final rule, a certification was developed for this action using SBA's former size standards. Subsequent to the June 20, 2013, rule, NMFS has reviewed the certification prepared for this action in light of the new size standards. Under the former, lower size standards, all entities subject to this action were considered small entities, thus they all would continue to be considered small under the new standards. NMFS has determined that the new size standards do not affect the analyses prepared for this action.
Fisheries, Fishing, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:
16 U.S.C. 1801
(a) * * *
(4)
(i)
(A) A valid letter of authorization issued by the Regional Administrator must be onboard the vessel; and
(B) The vessel must adhere to the terms and conditions of the PSP testing protocol as adopted into the National Shellfish Sanitation Program by the Interstate Shellfish Sanitation Conference. All surfclams and ocean quahogs harvested from the area must be handled in accordance with the terms and conditions of the protocol from the first point of harvest through completion of testing and release by the State Shellfish Control Authority as required by the PSP testing protocol; and
(C) Prior to leaving port at the start of a fishing trip, the vessel's owner or operator must declare its intent to fish in the area through the vessel's vessel monitoring system.
(ii) [Reserved]
Animal and Plant Health Inspection Service, USDA.
Proposed rule.
We are proposing to amend the fruits and vegetables regulations to allow the importation of cape gooseberry from Colombia into the United States. As a condition of entry, cape gooseberry from Colombia would be subject to a systems approach that would include requirements for establishment of pest-free places of production and the labeling of boxes prior to shipping. The cape gooseberry would also have to be imported in commercial consignments and accompanied by a phytosanitary certificate issued by the national plant protection organization of Colombia certifying that the fruit has been produced in accordance with the systems approach. This action would allow for the importation of cape gooseberry from Colombia into the United States while continuing to provide protection against the introduction of plant pests.
We will consider all comments that we receive on or before October 15, 2013.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
Ms. Claudia Ferguson, Regulatory Policy Specialist, Regulatory Coordination and Compliance, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737–1236; (301) 851–2352.
The regulations in “Subpart—Fruits and Vegetables” (7 CFR 319.56–1 through 319.56–59, referred to below as the regulations) prohibit or restrict the importation of fruits and vegetables into the United States from certain parts of the world to prevent the introduction and dissemination of plant pests that are new to or not widely distributed within the United States.
Cape gooseberry (
In response to the request of the NPPO of Colombia, we prepared a commodity import evaluation document (CIED) titled “Recognition of cape gooseberry production sites that are free of Mediterranean fruit fly within a low prevalence area in Colombia Bogota Savannah and the neighboring municipalities above 2,200 meters in the Departments of Boyacá and Cundinamarca.” The CIED may be viewed on the Regulations.gov Web site or in our reading room (see
Based on the evidence presented in the CIED, we have determined that cape gooseberry can be safely imported from Colombia into the United States without cold treatment if they are produced in accordance with a systems approach. We are proposing to add the systems approach outlined below to the regulations in a new § 319.56–60 governing the importation of cape gooseberry from Colombia.
Paragraph (a) of proposed § 319.56–60 would require the NPPO of Colombia to provide a bilateral workplan to APHIS that details the activities the NPPO will carry out to meet the requirements of the systems approach, subject to APHIS' approval of the workplan. APHIS would be directly involved with the NPPO in monitoring and auditing implementation of the systems approach. A bilateral workplan is an agreement between APHIS' Plant Protection and Quarantine program, officials of the NPPO of a foreign government, and, when necessary, foreign commercial entities that specifies in detail the phytosanitary measures that will be carried out to comply with our regulations regarding a specific commodity. Bilateral workplans apply only to the signatory parties and establish detailed procedures and guidance for the day-to-day operations of specific import/export programs. Bilateral workplans also establish how specific phytosanitary issues are dealt with in the exporting country and make clear who is responsible for dealing with those issues. The implementation of a systems approach typically requires a bilateral workplan to be developed.
Paragraph (b)(1) of proposed § 319.56–60 would specify that all places of production be registered with the NPPO of Colombia. Under paragraph (b)(2) of proposed § 319.56–60, all places of production would have to be located
Only one fruit fly has been trapped in the low prevalence area in Bogota Savannah and the neighboring municipalities above 2,200 meters since 1993. Therefore, we propose using trapping to monitor the places of production within the low prevalence area described above as an element of the systems approach to mitigate the risk posed by Medfly.
In paragraph (c)(1) of proposed § 319.56–60, we would require the NPPO of Colombia to place fruit fly traps at intervals specified in the bilateral work plan to demonstrate place of production freedom from Medfly. The NPPO of Colombia would have to keep records of fruit fly detections for each trap and make the records available to APHIS upon request.
Paragraph (c)(2) would specify that the trapping of any Medfly would have to be reported to APHIS immediately. Capture of
Under paragraph (d) of proposed § 319.56–60, the cape gooseberries would have to be packed in boxes marked with the identity of the originating farm. This measure would allow shipments of the fruit to be traced back to the farm in the event of the discovery of a pest. The boxes containing cape gooseberries would have to be packed in sealed and closed containers before being shipped in order to prevent harvested fruit from being infested by quarantine pests.
Paragraph (e) would state that, after the commodity is packed, the NPPO of Colombia must visually inspect a biometric sample of cape gooseberry at a rate jointly approved by APHIS and the NPPO of Colombia and cut open the fruit to detect
Paragraph (f) would state that only commercial consignments of cape gooseberry would be allowed to be imported. Commercial consignments, as defined in § 319.56–2, are consignments that an inspector identifies as having been imported for sale and distribution. Such identification is based on a variety of indicators, including, but not limited to: Quantity of produce, type of packaging, identification of grower or packinghouse on the packaging, and documents consigning the fruits or vegetables to a wholesaler or retailer. Produce grown commercially is less likely to be infested with plant pests than noncommercial consignments. Noncommercial consignments are more prone to infestations because the commodity is often ripe to overripe, could be of a variety with unknown susceptibility to pests, and is often grown with little or no pest control.
Paragraph (g) would set out the requirement for a phytosanitary certificate. Each consignment of fruit would have to be accompanied by a phytosanitary certificate issued by the NPPO of Colombia, providing an additional declaration stating that the fruit in the consignment was produced in accordance with the requirements in proposed § 319.56–60. This requirement would provide for the Colombian NPPO's confirmation that the provisions of the regulations have been met.
This proposed rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.
In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities. The analysis is summarized below. Copies of the full analysis are available by contacting the person listed under
APHIS is proposing to amend the current regulations to allow the entry of fresh cape gooseberry from Colombia under a systems approach. Since 2003, Colombia has been allowed to export fresh cape gooseberry to the United States under a cold treatment protocol to prevent the entry of Medfly. The systems approach would permit cape gooseberry imports without cold treatment from production sites recognized as free of Medfly. In 2011, only about 0.2 percent (14 metric tons) of Colombia's fresh cape gooseberry exports were shipped to the United States, valued at about $90,300.
The United States does not produce cape gooseberry commercially. Small entities that may benefit from increased imports of fresh cape gooseberry from Colombia would be importers, wholesalers, and other merchants who sell this fruit. While these industries are primarily comprised of small entities, APHIS expects any impacts of the proposed rule for these businesses to be minor.
Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not have a significant economic impact on a substantial number of small entities.
This proposed rule would allow cape gooseberry to be imported into the United States from Colombia. If this proposed rule is adopted, State and local laws and regulations regarding cape gooseberry imported under this rule would be preempted while the fruit is in foreign commerce. Fresh fruits are generally imported for immediate distribution and sale to the consuming public and would remain in foreign commerce until sold to the ultimate consumer. The question of when foreign commerce ceases in other cases must be addressed on a case-by-case basis. If this
In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
APHIS is proposing to amend the fruits and vegetables regulations to allow the importation of cape gooseberry from Colombia into the United States. As a condition of entry, cape gooseberry from Colombia would be subject to a systems approach that will require information collection activities including a bilateral workplan, registration of places of production, box marking, trapping and records, and a phytosanitary certificate.
We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping requirements. These comments will help us:
(1) Evaluate whether the proposed information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses).
Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851–2908.
The Animal and Plant Health Inspection Service is committed to compliance with the EGovernment Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this proposed rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851–2908.
Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Rice, Vegetables.
Accordingly, we propose to amend 7 CFR part 319 as follows:
7 U.S.C. 450, 7701–7772, and 7781–7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.
Cape gooseberry (
(a)
(b)
(2) All places of production must be located within the
(c)
(2) All fruit flies trapped must be reported to APHIS immediately. Capture of
(d)
(e)
(f)
(g)
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Petition for Reconsideration; Request for Comments.
The Department of Energy (DOE) received a petition from the Landmark Legal Foundation (LLF), requesting that DOE reconsider its final rule of Energy Conservation Standards for Standby Mode and Off Mode for Microwave Ovens, Docket No. EERE–2011–BT–STD–0048, RIN 1904–AC07, 78 FR 36316 (June 17, 2013) (“Microwave Final Rule” or “the Rule”). Specifically, LLF requests that DOE reconsider the Rule because the final rule used a different Social Cost of Carbon (SCC) than the figure used in the supplemental notice of proposed rulemaking (SNOPR). DOE seeks comment on whether to undertake the reconsideration suggested in the petition.
Any comments must be received by DOE not later than September 16, 2013.
Comments must be submitted, identified by docket number EERE–BT–PET–0043, by one of the following methods:
1.
2.
3.
4.
5.
Ashley Armstrong, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE–2J, 1000 Independence Avenue SW., Washington, DC 20585–0121, (202) 586–6590, or
The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., provides among other things that, “[e]ach agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.” 5 U.S.C. 553(e). DOE received a petition from the Landmark Legal Foundation (LLF) on July 2, 2013, requesting that DOE reconsider its final rule of Energy Conservation Standards for Standby Mode and Off Mode for Microwave Ovens, Docket No. EERE 2011 BT STD 0048, RIN 1904 AC07, 78 FR 36316 (June 17, 2013) (“Microwave Final Rule” or “the Rule”).
The Rule was adopted by DOE in accordance with the Energy Policy and Conservation Act of 1975 (EPCA). (78 FR 36316) EPCA, as amended, prescribes energy conservation standards for various consumer products and certain commercial and industrial equipment. On June 17, 2013, DOE published a final rule adopting standby mode and off mode standards, which it determined would result in significant conservation of energy and were technologically feasible and economically justified.
In developing the Rule, DOE issued a Supplemental Notice of Proposed Rulemaking (SNOPR) on February 14, 2012. (77 FR 8555) In this SNOPR, as part of its economic analysis of the proposed rule, DOE sought to monetize the cost savings associated with the reduced carbon missions that would result from the expected energy savings of the proposed rule. To do this, DOE used “the most recent values [of SCC] identified by the interagency process,” which, at the time, was the SCC calculation developed by the “Interagency Working Group on Social Cost of Carbon 2010.”
In May 2013, subsequent to the SNOPR but prior to DOE's issuance of the Rule, the Interagency Working Group on Social Cost of Carbon released revised SCC values. (Technical Update of the
Landmark petitions DOE to reconsider the Rule on the grounds that this change in the values used in estimating the economic benefits of the Rule should have been subject to a prior opportunity for public comment because the 2013 SCC values were not the “logical outgrowth” of the 2010 SCC values. Further, Landmark asserts that without reconsideration of the Rule, DOE might now rely on its prior use of the 2013 SCC values in the Rule when it endeavors to enact new energy conservation standards in the future.
In promulgating this petition for public comment, DOE seeks public comment on whether to undertake the reconsideration suggested in the petition. DOE takes no position at this time on the merits of the suggested reconsideration.
Set forth below is the full text of the Landmark Legal Foundation.
Landmark Legal Foundation (“Landmark”) respectfully petitions the Department of Energy (“DOE” or “Department”) for reconsideration of its final rule on Energy Conservation Standards for Standby Mode and Off Mode for Microwave Ovens, Docket No. EERE–2011–BT–STD–0048, RIN 1904–AC07, 78 FR 36316 (June 17, 2013) (“Microwave Final Rule” or “Rule”).
President Barrack Obama has directed the issuance of sweeping new environmental regulations on carbon emissions from multiple sources.
Each of the new and massive regulatory proposals directed at carbon emission sources will require implementing agencies to conduct “cost-benefit” analysis upon which the public should be able to make comment. DOE's unannounced, dramatically increased, and improperly altered “Social Cost of Carbon” (“SCC”) valuation presented for the first time in this microwave oven regulation will certainly become the standard by which all other agencies will place a purportedly beneficial economic value on new carbon regulations.
Landmark objects to the Department's (and unnamed other agencies) decision to utilize an “Interagency Update” to justify increasing the “social cost” of carbon dioxide without any opportunity for public comment. Finalizing such a far reaching decision without notice and public comment violates the Administrative Procedure Act's (APA) and Executive Order 13563's tenets of transparency, objectivity and fairness in promulgating and finalizing regulations.
Landmark submits this document as a Petition for Reconsideration. However, the egregious violations of the APA as documented in this Petition demand rescission of the Rule. Landmark respectfully requests the DOE halt implementation and begin the regulatory process anew. At a minimum, the DOE's action must be reconsidered and presented to the public for proper consideration and comment. Without public input on DOE's SCC calculation, the agency will utterly fail to adhere to its obligations for transparency under the APA and its duty to comply with the Obama Administration's declared commitment to meaningful public participation. DOE should immediately suspend implementation of this regulation, place it on the public docket and permit comments on the Department's decision to utilize a new and previously unknown “interagency update” for calculating the values used to quantify the “Social Cost of Carbon” or “SCC.”
On June 17, 2013, pursuant to the Energy Policy and Conservation Act and the Energy Independence and Security Act, (“EPCA” and “EISA 2007,” respectively) DOE promulgated a final rule establishing “energy conservation standards” for microwave ovens. 78 FR 36316.
The final rule uses a new valuation for SCC that is different from—and dramatically higher than—that used in the proposed rule during the notice and comment period. See, 77 FR 8555 (Energy Conservation Standards for Standby Mode and Off Mode for Microwave Ovens, Supplemental Notice of Proposed Rulemaking and public meeting, Feb. 14, 2012). This new valuation appears in Table IV–14 of the new rule and, apparently, is derived from the “2013 Interagency Update, 2010–2050.” 78 FR 36351. The new value is important because it serves as a key data factor in all cost-benefit analyses performed involving carbon dioxide. Despite its curious and surreptitious integration into a rule pertaining to microwave ovens, this new estimate appears to apply to all federal agencies engaging in cost-benefit analyses involving carbon dioxide emissions. DOE states, “the purpose of the SCC estimates presented here is to
While the final rule utilizes an “interagency update” for establishing SCC values, the proposed rule does not contain these updated figures. See 78 FR 36351 and 77 FR 8555, respectively. Instead, the proposed rule provides SCC values derived “from three integrated assessment models.” 77 FR 8555. There is significant deviation in SCC estimates from the models used in the proposed rule to the models used in the final rule. For example, in the proposed rule, the Social Cost of Carbon, under one discount rate is estimated to be $23.80 dollars per metric ton by 2015. 77 FR 8555. That number rises to $38 dollars per metric ton under the new estimates provided in the final rule. 78 FR 36351.
It appears these new figures were inserted into the existing rule without any opportunity for public comment on their efficacy. Such new values will dramatically affect cost-benefit analyses. Any federal rule limiting carbon dioxide emissions will now appear considerably more valuable than under previous analyses.
DOE acknowledges that any effort to “quantify and monetize the harms associated with climate change” raises “serious questions of science, economics, and ethics . . .” 78 FR at 36349. It also reports that it arrived at these estimates “as part of [an] interagency process “where numerous agencies met on a regular basis . . .” Id. However, there is no indication that DOE, or any other governmental entity, sought specific comments from the public on its new estimates. DOE states that preliminary assessments that established “interim values” for the SCC were subject to the traditional notice and comment procedures, “the results of this preliminary effort were presented in several proposed and final rules.” Id. Yet, DOE has not made these new estimates available for public comment. Instead, DOE, along with a number of other federal agencies, arrived at these new figures through some sort of “interagency process” and published them in a final regulation on microwave oven power modes.
The DOE's effort to cloak its actions by dubiously inserting a crucial cost-benefit metric into a rule pertaining to microwave oven standards does not withstand scrutiny under the APA. It appears that DOE inserted its new SCC estimates into the regulation without
The APA mandates that an agency “shall give interested persons an opportunity to participate in the rulemaking through submission of written data, views, or arguments with or without opportunity for oral presentation.” 5 U.S.C. 553(c). The purpose of a robust comment period “is to allow interested members of the public to communicate information, concerns, and criticisms to an agency during rulemaking process.”
Therefore, the notice and comment period “encourages public participation in the administrative process and educates the agency, thereby helping to ensure informed agency decisionmaking.”
“[H]iding or disguising the information that it employs is to condone a practice in which the agency treats what should be genuine interchange as mere bureaucratic sport.
Thus, a proper notice and comment period improves the “quality of agency rulemaking by testing proposed rules through exposure to public comments. Second, the notice requirements provide an opportunity to be heard, which is basic to fundamental fairness. Third, notice and comment allows affected parties to develop a record of objections for judicial review.”
Finally, an agency “is required to renotice [its proposed rule] when the changes [to that rule] are so major that the original notice did not adequately frame the subjects for discussion.”
DOE eschewed all of these principles when it made a significant change to its rule.
By inserting a new estimate for SCC values, DOE denied interested parties the opportunity to comment on DOE's motivations, methodologies and conclusions in reaching said values. The public has also been denied the opportunity to question the calculations utilized by the “Interagency Working Group on Social Costs of Carbon.” Instead, these new values were unilaterally placed into a final regulation with no notice or opportunity to comment. These new values are not a logical outgrowth from the proposed rule. In fact, DOE notes in both the proposed and final rules, “that a number of key uncertainties remain, and that current SCC estimates should be treated as provisional and revisable. . . .” 77 Fed Reg. 8555, 78 FR 36351. DOE acknowledges that “key uncertainties remain,” yet disregards its obligation to receive potentially instructive information by providing a forum for public comment.
Additionally, these changes are significant and wide reaching. DOE concedes that other agencies will utilize these new values when calculating the costs and benefits of rules relating to greenhouse gasses. It states, “the purpose of the SCC estimates presented here is to allow agencies to incorporate the monetized social benefits of reducing CO2 emissions . . .” 78 FR 36349. With this unilateral change, agency cost benefit analyses will be drastically affected. Going forward, any federal rule limiting carbon dioxide emissions will appear considerably more valuable than under previous analyses. Such a change could “have wide-ranging implications for everything from power plants to the Keystone XL pipeline.” Mark Brajem, “Obama Quietly Raises `Carbon Price' as Costs to Climate Increase.” Bloomberg.com, June 12, 2013 (Attached as Exhibit A.) In choosing to bypass the mandated notice and comment procedures for this significant change, DOE has violated the APA. The Department can rectify this violation by halting the regulation's implementation and allowing for public comment.
On January 18, 2011, President Obama issued an executive order requiring that agency rulemaking “shall be adopted through a process that involves public participation.” Executive Order 13563, Improving Regulation and Regulatory Review. In particular, the President's executive order provided:
To promote that open exchange, each agency, consistent with Executive Order 12866 and other applicable legal requirements, shall endeavor to provide the public with an opportunity to participate in the regulatory process. To the extent feasible and permitted by law, each agency shall afford the public a meaningful opportunity to comment through the Internet on any proposed regulation, with a comment period that should generally be at least 60 days. To the extent feasible and permitted by law, each agency shall also provide, for both proposed and final rules, timely online access to the rulemaking docket on regulations.gov, including relevant scientific and technical findings, in an open format that can be easily searched and downloaded. For proposed rules, such access shall include, to the extent feasible and permitted by law, an opportunity for public comment on all pertinent parts of the rulemaking docket, including relevant scientific and technical findings. Id.
For reasons set forth above, the DOE's actions also violate the principles outlined in President Obama's order.
Landmark respectfully requests DOE immediately halt implementation and rescind the Rule. In the alternative, Landmark requests DOE adhere to the mandates of the APA, and subject the changes documented in this Petition to a proper notice and comment.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede airworthiness directive (AD) 2002–10–11, which applies to certain the Boeing Company Model 737–100, –200, –200C, –300, –400, and –500 series airplanes. AD 2002–10–11 currently requires repetitive inspections for cracking and corrosion of the aft pressure bulkhead, and corrective actions if necessary; and, for certain airplanes, enlargement of frame chord drain holes, and repetitive inspections of the frame chord drain path for debris, and corrective actions if necessary. Since we issued AD 2002–10–11, we have received three reports of severe corrosion in the area affected by that AD. This proposed AD would, for certain airplanes, reduce the repetitive inspection interval, and add repetitive inspections of the frame chord drain path for obstructions and debris, and corrective actions if necessary. This proposed AD would also limit corrosion and cracking repairs of the aft pressure bulkhead accomplished after the effective date of this AD to those approved by the FAA in a manner described therein. In reviewing AD 2002–10–11, we noted that the drain path inspection was not required for certain airplanes, and could be eliminated for all airplanes if operators accomplished certain actions required by AD 2002–10–11. This proposed AD would add a drain path inspection for all airplanes. We are proposing this AD to detect and correct corrosion or cracking of the aft pressure bulkhead, which could result in loss of the aft pressure bulkhead web and stiffeners, and consequent rapid decompression of the airplane.
We must receive comments on this proposed AD by September 30, 2013.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
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For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, WA 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; Internet
You may examine the AD docket on the Internet at
Alan Pohl, Aerospace Engineer, Airframe Branch, ANM–120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057–3356; phone: 425–917–6450; fax: 425–917–6590; email:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On May 14, 2002, we issued AD 2002–10–11, Amendment 39–12757 (67 FR 36085, May 23, 2002), for certain Model 737–100, –200, –200C, –300, –400, and –500 series airplanes. AD 2002–10–11 superseded AD 84–20–03 R1, Amendment 39–5183 (50 FR 51235, December 16, 1985). AD 2002–10–11 requires repetitive inspections for cracking and corrosion of the aft pressure bulkhead, and corrective actions if necessary; and, for certain airplanes, enlargement of frame chord drain holes, repetitive inspections of the frame chord drain path for obstructions and debris, and corrective actions if necessary. We issued AD 2002–10–11 to detect and correct corrosion or cracking of the aft pressure bulkhead at body station (BS) 1016, which could result in loss of the aft pressure bulkhead web and stiffeners, and consequent rapid decompression of the fuselage.
Since 2010, we have received three reports of severe corrosion in the aft pressure bulkhead. Two of these airplanes were corroded completely through the thickness of the pressure web. The age of the airplanes when corrosion was found ranged from 12 to 17 years. The total flight hours ranged from 40,892 to 68,389 hours, and the total flight cycles ranged from 22,701 to 58,156 flight cycles.
AD 2002–10–11, Amendment 39–12757 (67 FR 36085, May 23, 2002),
In addition, repair procedures in Boeing Alert Service Bulletin 737–53A1075, Revision 3, dated June 8, 2000, which is specified in paragraph (g) of AD 2002–10–11, Amendment 39–12757 (67 FR 36085, May 23, 2002), as the appropriate source of service information, include instructions for blending out corrosion on the bulkhead web. The reworked web is more susceptible to subsequent corrosion.
After consultation with the manufacturer, we have determined that reduction of the interval for the repetitive inspections from 4 years to 2 years, together with removal of repair instructions for blending out corrosion on the bulkhead web, will reduce the frequency and severity of corrosion findings and provide an acceptable level of safety.
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would retain all requirements of AD 2002–10–11, Amendment 39–12757 (67 FR 36085, May 23, 2002). This proposed AD would reduce the interval for the repetitive inspections for airplanes having line numbers (L/N) 1043 through 3132 inclusive from 4 years to 2 years; and would provide an option to inspect only the aft side of the aft pressure bulkhead every 3 months for a maximum of 2 years, at which time both the forward and aft sides of the aft pressure bulkhead would require repetitive inspections at 2-year intervals. This proposed AD would, for certain airplanes, add repetitive inspections of the frame chord drain path for debris, and corrective actions if necessary.
This proposed AD would retain all the requirements of AD 2002–10–11, Amendment 39–12757 (67 FR 36085, May 23, 2002). Since AD 2002–10–11 was issued, the AD format has been revised, and certain paragraphs have been rearranged. As a result, the corresponding paragraph identifiers have changed in this proposed AD, as listed in the following table:
Note 2 (detailed inspection definition) in AD 2002–10–11, Amendment 39–12757 (67 FR 36085, May 23, 2002), has been removed from this proposed AD because it is described in Figure 1 of Boeing Alert Service Bulletin 737–53A1075, Revision 3, dated June 8, 2000.
Paragraph (e) of AD 2002–10–11, Amendment 39–12757 (67 FR 36085, May 23, 2002), which is paragraph (k) in this proposed AD, has been revised to clarify that the required actions include inspecting the drain path in the chord frame for debris.
The terminating action statement in paragraph (e)(1) of AD 2002–10–11, Amendment 39–12757 (67 FR 36085, May 23, 2002), has been revised to terminate only the aft bulkhead inspection for cracking and corrosion in paragraph (g) of this proposed AD.
Since we issued AD 2002–10–11, Amendment 39–12757 (67 FR 36085, May 23, 2002), Boeing Commercial Airplanes received an Organization Designation Authorization (ODA). We have revised this proposed AD to delegate the authority to approve an alternative method of compliance for any repair required by this AD to the Boeing Commercial Airplanes ODA rather than a Designated Engineering Representative.
Boeing Alert Service Bulletin 737–53A1075, Revision 3, dated June 8, 2000, describes instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways:
• In accordance with a method that we approve; or
• Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes ODA whom we have authorized to make those findings.
This proposed AD would also reduce the repeat inspection interval for corrosion and cracking on airplanes having line numbers 1043 through 3132.
We estimate that this proposed AD affects 419 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
The new requirements of this proposed AD add no additional economic burden.
We estimate the following costs to do any necessary repairs that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need these repairs:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This proposed regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this AD action by September 30, 2013.
This AD supersedes AD 2002–10–11, Amendment 39–12757 (67 FR 36085, May 23, 2002).
This AD applies to The Boeing Company Model 737–100, –200, –200C, –300, –400, and –500 series airplanes, certificated in any category, line numbers 1 through 3132 inclusive.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by three reports of severe corrosion in the area affected by AD 2002–10–11, Amendment 39–12757 (67 FR 36085, May 23, 2002). We are issuing this AD to detect and correct corrosion or cracking of the aft pressure bulkhead, which could result in loss of the aft pressure bulkhead web and stiffeners, and consequent rapid decompression of the airplane.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements of paragraph (a) of AD 2002–10–11, Amendment 39–12757 (67 FR 36085, May 23, 2002), with clarification of the drain path inspection. For Model 737 series airplanes having line numbers (L/N) 1 through 929 inclusive, with more than 20,000 hours time-in-service or 7 years since date of manufacture, whichever occurs first: Within 120 days after January 20, 1986 (the effective date of AD 84–20–03 R1, Amendment 39–5183 (50 FR 51235, December 16, 1985)), unless already accomplished within the 21 months before January 20, 1986, visually inspect the body station (BS) 1016 pressure bulkhead, including inspecting for cracking and corrosion of the pressure bulkhead, and for debris in the drain path in the chord frame, according to Boeing Alert Service Bulletin 737–53A1075, Revision 1, dated September 2, 1983; Revision 2, dated July 13, 1984; or Revision 3, dated June 8, 2000. Remove any obstruction to the drain hole in the frame chord and replace any deteriorated leveling compound as noted in Boeing Alert Service Bulletin 737–53A1075, Revision 1, dated September 2, 1983; Revision 2, dated July 13, 1984; or Revision 3, dated June 8, 2000. Treat the area of inspection with corrosion inhibitor BMS 3–23, or equivalent. After the effective date of this AD, use only Boeing Alert Service Bulletin 737–53A1075, Revision 3, dated June 8, 2000, to do the actions required by this paragraph.
This paragraph restates the requirements of paragraph (b) of AD 2002–10–11, Amendment 39–12757 (67 FR 36085, May 23, 2002), with revised service bulletin requirements. For airplanes identified in paragraph (g) of this AD: Within 1 year after January 20, 1986 (the effective date of AD 84–20–03 R1, Amendment 39–5183 (50 FR 51235, December 16, 1985)), accomplish the drain hole enlargement as shown in Boeing Alert Service Bulletin 737–53A1075, Revision 1, dated September 2, 1983; Revision 2, dated July 13, 1984; or Revision 3, dated June 8, 2000. After the effective date of this AD, use only Boeing Alert Service Bulletin 737–53A1075, Revision 3, dated June 8, 2000, to do the actions required by this paragraph.
This paragraph restates the requirements of paragraph (c) of AD 2002–10–11, Amendment 39–12757 (67 FR 36085, May 23, 2002), with revised compliance methods. If cracking or corrosion is found during any inspection required by paragraph (g) or (j) of this AD: Before further flight, repair according to paragraph (i)(1) or (i)(2) of this AD, as applicable.
(1) If the inspection was done before the effective date of this AD: Repair according to Boeing Alert Service Bulletin 737–53A1075, Revision 1, dated September 2, 1983; Revision 2, dated July 13, 1984; or Revision 3, dated June 8, 2000.
(2) If the inspection was done on or after the effective date of this AD: Repair using a method approved in accordance with the procedures specified in paragraph (p) of this AD.
This paragraph restates the requirements of paragraph (d) of AD 2002–10–11, Amendment 39–12757 (67 FR 36085, May 23, 2002), with revised actions. For airplanes identified in paragraph (g) of this AD: Repeat the visual inspections and corrosion inhibitor treatment specified in paragraph (g) of this AD at intervals not to exceed 2 years. Accomplishment of the initial aft pressure bulkhead inspection required by paragraph (k) of this AD terminates the inspection required by this paragraph.
This paragraph restates the requirements of paragraph (e) of AD 2002–10–11, Amendment 39–12757 (67 FR 36085, May 23, 2002), with revised terminating action. Do a detailed inspection for cracking or corrosion of the aft pressure bulkhead at BS 1016 (including the forward and aft sides of the pressure web, forward and aft sides of the pressure chord, pressure chord radius,
(1) For airplanes on which an inspection has previously been done according to the requirements of paragraph (g) of this AD: Do the inspection within 2 years since the most recent inspection according to paragraph (g) or (j) of this AD, as applicable. For the airplanes identified in paragraph (g) of this AD, accomplishment of the inspection required by paragraph (k) of this AD terminates the inspections for cracking and corrosion required by paragraph (j) of this AD.
(2) For airplanes having L/Ns 930 through 1042 inclusive, on which an inspection has not previously been done according to paragraph (g) of this AD: Do the inspection within 2 years after June 27, 2002 (the effective date AD 2002–10–11, Amendment 39–12757 (67 FR 36085, May 23, 2002)).
(3) For airplanes having L/Ns 1043 through 3132 inclusive, on which an inspection has not previously been done according to paragraph (g) of this AD: Do the inspection within 6 years since the airplane's date of manufacture, or within 2 years after June 27, 2002 (the effective date AD 2002–10–11, Amendment 39–12757 (67 FR 36085, May 23, 2002)), whichever occurs later.
This paragraph restates the requirements of paragraph (f) of AD 2002–10–11, Amendment 39–12757 (67 FR 36085, May 23, 2002), with revised compliance times. Repeat the inspection in paragraph (k) of this AD at the applicable time shown in paragraph (l)(1) or (l)(2) of this AD.
(1) For airplanes having L/Ns 1 through 1042 inclusive: Repeat the inspection thereafter at intervals not to exceed 2 years.
(2) For airplanes having L/Ns 1043 through 3132 inclusive: Repeat the inspection thereafter within 2 years since the last inspection or within 120 days after the effective date of this AD, whichever occurs later.
This paragraph restates the requirements of paragraph (g) of AD 2002–10–11, Amendment 39–12757 (67 FR 36085, May 23, 2002), with revised repair requirements. If any corrosion or cracking is found during any inspection according to paragraph (k) or (l) of this AD: Do the applicable action specified in paragraph (m)(1) or (m)(2) of this AD.
(1) If the inspection was done prior to the effective date of this AD: Before further flight, repair according to Boeing Alert Service Bulletin 737–53A1075, Revision 3, dated June 8, 2000. Exception: If corrosion or cracking of the web and stiffeners is outside the limits specified in Boeing Alert Service Bulletin 737–53A1075, Revision 3, dated June 8, 2000, or if corrosion or cracking is found in any structure not covered by the repair instructions in Boeing Alert Service Bulletin 737–53A1075, Revision 3, dated June 8, 2000, before further flight, repair according to a method approved by the Manager, Seattle Aircraft Certification Office (ACO), or per data meeting the type certification basis of the airplane approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) who has been authorized by the Manager, Seattle ACO, to make such findings. For a repair method to be approved by the Manager, Seattle ACO, as required by this paragraph, the Manager's approval letter must specifically reference this AD.
(2) After the effective date of this AD, if any corrosion or cracking is found during any inspection required by this AD: Before further flight, repair the corrosion or cracking using a method approved in accordance with the procedures specified in paragraph (p) of this AD.
For airplanes having L/N 1 through 3132 inclusive: Within 2 years since the last inspection in accordance with paragraph (k) of this AD or within 2 years after the effective date of this AD, whichever occurs later: Do a general visual inspection of the drain path in the chord frame for debris. Remove any obstruction to the drain hole in the frame chord and replace any deteriorated leveling compound. Treat the area of inspection with corrosion inhibitor BMS 3–23, or equivalent. Repeat the actions required by this paragraph at intervals not to exceed 2 years. Do all actions required by this paragraph in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737–53A1075, Revision 3, dated June 8, 2000. For the purposes of this AD, a general visual inspection is a visual examination of an interior or exterior area, installation, or assembly to detect obvious damage, failure, or irregularity. This level of inspection is made from within touching distance unless otherwise specified. A mirror may be necessary to ensure visual access to all surfaces in the inspection area. This level of inspection is made under normally available lighting conditions such as daylight, hangar lighting, flashlight, or droplight and may require removal or opening of access panels or doors. Stands, ladders, or platforms may be required to gain proximity to the area being checked.
For airplanes having L/Ns 1043 through 3132 inclusive: In lieu of performing the inspection required by paragraph (l) of this AD, operators may do the actions specified in this paragraph. Within 2 years from the most recent aft pressure bulkhead inspection done as specified in Boeing Alert Service Bulletin 737–53A1075, Revision 1, dated September 2, 1983; Revision 2, dated July 13, 1984; or Revision 3, dated June 8, 2000; or within 120 days after the effective date of this AD, whichever occurs later, do a detailed inspection for cracking or corrosion of the aft side of the aft pressure bulkhead at BS 1016 (including the aft sides of the pressure web, aft sides of the pressure chord, pressure chord radius, aft chord, stringer end fitting, system penetration doublers, and fasteners common to the pressure chord and pressure web), in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737–53A1075, Revision 3, dated June 8, 2000. If any corrosion or cracking is found: Before further flight, repair the corrosion or cracking using a method approved in accordance with the procedures specified in paragraph (p) of this AD. Repeat the inspection thereafter at intervals not to exceed 90 days. Within 2 years after the initial inspection done in accordance with this paragraph: Do the actions specified in paragraph (k) of this AD, and repeat thereafter at intervals not to exceed 2 years.
(1) The Manager, Seattle ACO, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD. Information may be emailed to
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes ODA that has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) AMOCs approved previously in accordance with AD 2002–10–11, Amendment 39–12757 (67 FR 36085, May 23, 2002), are approved as AMOCs for the corresponding provisions of this AD.
(1) For more information about this AD, contact Alan Pohl, Aerospace Engineer, Airframe Branch, ANM–120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, Washington 98057–3356; phone: (425) 917–6450; fax: (425) 917–6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, Washington 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; Internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Saab AB, Saab Aerosystems Model 340A (SAAB/SF340A) and SAAB 340B airplanes modified by Supplemental Type Certificate SA7971SW. This proposed AD was prompted by reports of smoke, a burning odor, and possible fire in the flight deck and cabin of the airplane, which was caused by brushes wearing beyond their limits, in the air conditioning motor. This proposed AD would require an inspection to determine if a certain air compressor motor is installed, an inspection to determine the age of a certain compressor hour meter since new or overhauled, and repetitive replacement of the brushes on affected air conditioning compressor motor units. As an option to the replacement, this proposed AD allows pulling the air conditioning circuit breaker and adding a placard. We are proposing this AD to detect and correct worn brushes contacting the commutator, which could result in a fire under the cabin floor with no means to detect or extinguish the fire.
We must receive comments on this proposed AD by September 30, 2013.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
Gregory Thiele, Aerospace Engineer, Special Certification Office, ASW–190, FAA, 2601 Meacham Boulevard, Fort Worth, TX 76137; phone: (817) 222–5229; fax: (817) 222–5785; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We received reports of smoke, a burning odor, and possible fire in the flight deck and cabin of the airplane, which was caused by brushes wearing beyond their limits, in the air conditioning motor. The rivets in the brush contacted the commutator, which caused sparks (the ignition source). The air conditioners (two units) are located under the floor, forward of the wing box. There is no fire detection or fire extinguishing equipment in the installed location. This condition (worn brushes contacting the commutator), if not corrected, could result in a fire under the cabin floor with no means to detect or extinguish the fire.
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of these same type designs.
This proposed AD would require an inspection to determine if a certain air compressor motor is installed, an inspection to determine the age of a certain compressor hour meter since new or overhauled, and repetitive replacement of the brushes on affected air conditioning compressor motor units. As an option to the replacement, this proposed AD allows pulling the air conditioning circuit breaker and adding a placard. This proposed AD also requires sending the inspection results to the FAA.
This proposed AD contains detailed steps to address the unsafe condition rather than referring to service information. However, under the provisions of paragraph (p) of this proposed AD, operators may request approval of an alternative method of compliance (AMOC), if sufficient data are submitted to substantiate that the AMOC would provide an acceptable level of safety.
We consider this proposed AD interim action. The inspection reports that would be required by this proposed AD will enable us to obtain better insight into the nature, cause, and extent of the brush wear, and eventually to develop final action to address the unsafe condition. Once final action has been identified, we might consider further rulemaking.
We estimate that this proposed AD affects 23 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB Control Number. The OMB Control Number for this information collection is 2120–0056. Public reporting for this collection of information is estimated to be approximately 5 minutes per response, including the time for reviewing instructions, completing and reviewing the collection of information. All responses to this collection of information are mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at: 800 Independence Ave. SW., Washington, DC 20591, Attn: Information Collection Clearance Officer, AES–200.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This proposed regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by September 30, 2013.
None.
This AD applies to Saab AB, Saab Aerosystems Model 340A (SAAB/SF340A) and SAAB 340B airplanes, certificated in any category, that have been modified as specified in Supplemental Type Certificate SA7971SW (
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 21, Air Conditioning.
This AD was prompted by reports of smoke, a burning odor, and possible fire in the flight deck and cabin of the airplane, which were caused by brushes wearing beyond their limits, in the air conditioning motor. We are issuing this AD to detect and correct worn brushes contacting the commutator, which could result in a fire under the cabin floor with no means to detect or extinguish the fire.
Comply with this AD within the compliance times specified, unless already done.
Within 30 days or 10 flight hours after the effective date of this AD, whichever occurs first: Inspect the air conditioner (A/C) compressor motor to determine if P/N 1134104–1 is installed. A review of airplane maintenance records is acceptable in lieu of this inspection if the part number of the A/C compressor motor can be conclusively determined from that review.
If, during the inspection required by paragraph (g) of this AD, any A/C compressor motor is found having P/N 1134104–1: Within 30 days or 10 flight hours after the effective date of this AD, whichever occurs first, determine the hour reading on the A/C compressor hour meter as specified in paragraphs (h)(1) and (h)(2) of this AD.
(1) Inspect the number of hours on the A/C compressor hour meter.
(2) Check the airplane logbook for any entry for replacing the A/C compressor motor brushes with new brushes, or for replacing the compressor motor or compressor condenser module assembly (pallet) with a motor or assembly that has new brushes.
(i) If the logbook contains an entry for replacement of parts as specified in paragraph (h)(2) of this AD, determine the number of hours on the A/C compressor motor brushes by comparing the number of hours on the compressor motor since replacement and use this number in lieu of the number determined in paragraph (h)(1) of this AD.
(ii) If, through the logbook check, the number of hours on the A/C compressor motor brushes cannot be positively determined as specified in paragraph (h)(2) of this AD, use the number of hours on the A/C compressor hour meter determined in paragraph (h)(1) of this AD, or assume the brushes have over 500 hours time-in-service.
Except as provided by paragraph (k) of this AD: Using the hour reading on the A/C compressor hour meter determined in paragraph (h) of this AD, replace the A/C compressor motor brushes with new brushes at the later of the times specified in paragraphs (i)(1) and (i)(2) of this AD. Thereafter, repeat the replacement of the A/C compressor motor brushes at intervals not to exceed every 500 hours time-in-service on the A/C compressor motor. Do the replacement in accordance with the actions specified in paragraph (j) of this AD.
(1) Before or when the A/C compressor motor reaches a total of 500 hours time-in-service. Or,
(2) Before further flight after the inspection required by paragraph (h) of this AD.
Do the actions specified in paragraphs (j)(1) through (j)(23) of this AD to replace the compressor motor brushes as required by paragraph (i) of this AD:
(1) New brushes may be installed by first level maintenance personnel only under the conditions listed in paragraphs (j)(1)(i) through (j)(1)(iv) of this AD. If these conditions are not met, deactivate the A/C in accordance with paragraph (k)(1) of this AD until the conditions listed in paragraphs (j)(1)(i) through (j)(1)(iv) of this AD are met, or the entire compressor motor is replaced.
(i) Motor was operating correctly prior to brush replacement.
(ii) The motor is tested to verify proper operation and does not show any defects that would require motor replacement.
(iii) Only approved vendor brushes are used (P/N 1251171).
(iv) Brushes are installed, seated, and tested in accordance with paragraphs (j)(2) through (j)(23) of this AD.
(2) Verify all electrical power is off to the system.
(3) Remove all access panels and exhaust ducts to gain access to the drive motor.
(4) Disconnect power leads from motor terminals (1/4–28). Tag the positive lead.
(5) Remove condenser support bracket to provide access to brush cover fasteners and remove motor cuff shroud.
(6) Loosen and unsnap brush cover assembly. Remove from the motor.
(7) Verify all power is off, and that all panels, shrouds, brackets, and fairings are removed.
(8) With a stiff wire hook or scribe, lift brush spring from holder and remove each worn brush set until all four sets are removed.
(9) Remove brush shunt wire terminal screw. Continue this step until all four screws are removed.
(10) With brushes removed and using shop air at 30–40 pounds per square inch gauge (psig) and nozzle, blow out as much carbon and/or copper dust as possible from the commutator, armature, and field windings. Purge from the commutator end of the motor.
(11) Install each new brush set by lifting brush springs, sliding brush into holder (with brush leading edge in direction of motor rotation) and lightly releasing the brush spring on the brush. (See Figure 1 to paragraph (m)(2)(vii) of this AD). CAUTION: Do not allow brush spring to strike hard into place or damage to brush may result.
(12) Verify that the brush seats flat on the commutator and that no binding in the holder is present. Align brush spring in center of brush groove.
(13) Install terminal screw and lock washer on brush shunt lead and other leads and tighten. Repeat this step for other brush sets. Torque to 15–20 in.-lbs. CAUTION: Do not cross thread or over torque brush lead screws or thread damage may result.
(14) Seat new brushes in accordance with paragraph (j)(15) of this AD. All new brushes must be seated to assure proper motor operation and/or performance.
(15) Brush Seating Procedure: Cut a 7 inch long by 1.5 inch wide (±0.125 inch, both dimensions) strip of 400–500 grit sand paper and place, with rough side out, on commutator. Secure one end of the paper to the commutator with masking tape in a manner such that the taped end will lead in the direction of shaft rotation (counter-clockwise looking at fan end). The other end will remain loose and overlap the taped end. Raise each brush momentarily while rotating the shaft until the taped end passes under each brush. After the sand paper is properly located tight against the commutator and encompasses all brush surface areas, carefully rotate the armature, by hand, in the normal direction of rotation until a full seat is obtained on each new brush. Three or four rotations is usually adequate. Excessive seating is not advised. Brush life may be reduced.
(16) Remove sand paper and blow out all carbon dust from the commutator and brush area. CAUTION: Eye, nose and throat protection must be worn during this procedure.
(17) Carefully lay brush shunt leads in position such as to prevent any shorting problems. Leads must be able to easily follow brush and spring movement as brush wear occurs.
(18) Replace brush cover and attach motor power cables, if required.
(19) Replace all bracketry and hardware removed to access motor.
(20) Assure that brackets are properly installed, cooling fan does not interfere with shroud, motor drive belt aligned/tensioned, and belt cover is installed.
(21) The motor should be tested to verify proper operation. Therefore, connect ground power source or verify aircraft power is on and turn system on.
(22) Run system for a minimum of 15 minutes to seat brushes and check motor operation.
(23) Turn system and aircraft power off. System is ready for use.
(1) In lieu of replacing the A/C compressor motor brushes as required by paragraphs (i) and (j) of this AD, before further flight, deactivate the A/C by doing the actions specified in paragraph (k)(1)(i) or (k)(1)(ii) of this AD, as applicable.
(i) Single System: Pull the compressor control circuit breaker (cockpit right-hand 10VU panel, “REAR AIR COND”); install a placard by the A/C selection switch (co-pilot's side panel) prohibiting use of the air conditioner; and document deactivation of the system in the airplane logbook referring to this AD as the reason for deactivation.
(ii) Dual System: Pull the compressor control circuit breakers (cockpit right-hand 10VU panel, “REAR AIR COND,” and cockpit left-hand 9VU panel, “FWD AIR COND”); install a placard (or placards) by the A/C selection switches (co-pilot's side panel) prohibiting use of the air conditioners; and document deactivation of the system in the airplane logbook referring to this AD as the reason for deactivation.
(2) If an operator chooses to deactivate the system and then later chooses to return the airplane to service: Before returning the A/C system to service and removing the placard(s), do the inspection specified in paragarph (g) of this AD, and, as applicable, the inspection specified in paragraph (h) of this AD, and the replacements specified in paragraph (i) of this AD at the times specified in paragraph (i) of this AD.
As of the effective date of this AD, no person may install an A/C compressor motor having P/N 1134104–1 on any airplane, unless the inspection specified in paragraph (h) of this AD has been done, and the replacements specified in paragraph (i) of this AD are done at the times specified in paragraph (i) of this AD.
Submit a report of the results of the determination of hours required by paragraph (h) of this AD to the Special Certification Office, ASW–190, Attn: Gregory Thiele, Aerospace Engineer, 2601 Meacham Boulevard, Fort Worth, TX 76137; or email to:
(1) The model and serial number of the airplane.
(2) The elapsed amount of flight hours since the last brush/motor replacement, if known.
(3) The amount of hours on the hour meter of the A/C compressor motor.
(4) The amount of wear on the brushes (including overall length and total calculated wear), calculated as specified in paragraphs (m)(4)(i) through (m)(4)(ix) of this AD.
(i) Verify all electrical power is off to system.
(ii) Remove all access panels and exhaust ducts to gain access to the drive motor.
(iii) Disconnect power leads from motor terminals (1/4–28). Tag positive lead.
(iv) Remove condenser support bracket to provide access to brush cover fasteners and remove motor cuff shroud.
(v) Loosen and unsnap brush cover assembly. Remove from motor.
(vi) With wire hook or scribe, lift brush spring and remove brush.
(vii) Measure each brush as shown in figure below and record values.
(viii) Using the brush with the shortest measured length calculate the wear by subtracting the measured value from 1.000 inch.
(ix) Replace brushes in accordance with the instructions specified in paragraphs (j)(9) through (j)(23) of this AD.
Submit the report required by paragraph (m) of this AD at the applicable time specified in paragraph (m)(1) or (m)(2) of this AD.
(1) If the determination of hours was done on or after the effective date of this AD: Submit the report within 30 days after the inspection.
(2) If the determination of hours was done before the effective date of this AD: Submit the report within 30 days after the effective date of this AD.
Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to an appropriately rated repair station, provided that the A/C is deactivated as specified in paragraph (k)(1) of this AD on airplanes on which the A/C has been operated for 500 hours or more, and replacement brushes are not available.
(1) The Manager, Special Certification Office, ASW–190, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the Special Certification Office, send it to the attention of the person identified in the Related Information section of this AD.
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Gregory Thiele, Aerospace Engineer, Special Certification Office, ASW–190, FAA, 2601 Meacham Boulevard, Fort Worth, TX 76137; phone: (817) 222–5229; fax: (817) 222–5785; email:
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish Class E airspace at Sisseton, SD. Controlled airspace is necessary to accommodate new Standard Instrument Approach Procedures (SIAP) at Sisseton Municipal Airport. The FAA is taking this action to enhance the safety and management of Instrument Flight Rules (IFR) operations for SIAPs at the airport.
Comments must be received on or before September 30, 2013.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Building, Ground Floor, Room W12–140, Washington, DC 20590–0001. You must identify the docket number FAA–2013–0641/Airspace Docket No. 13–AGL–7, at the beginning of your comments. You may also submit comments through the Internet at
Scott Enander, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 2601 Meacham Blvd., Fort Worth, TX 76137; telephone: 817–321–7716.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking (202) 267–9677, to request a copy of Advisory Circular No. 11–2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
This action proposes to amend Title 14, Code of Federal Regulations (14 CFR), Part 71 by establishing Class E airspace extending upward from 700 feet above the surface within a 10.7-mile radius to accommodate new standard instrument approach procedures at Sisseton Municipal Airport, Sisseton, SD. Controlled airspace is needed for the safety and management of IFR operations at the airport.
Class E airspace areas are published in Paragraph 6005 of FAA Order 7400.9W, dated August 8, 2012, and effective September 15, 2012, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would establish controlled airspace at Sisseton Municipal Airport, Sisseton, SD.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (Air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR Part 71 as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 10.7-mile radius of Sisseton Municipal Airport.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish Class E airspace at Loup City, NE. Controlled airspace is necessary to accommodate new Standard Instrument Approach Procedures (SIAP) at Loup City Municipal Airport. The FAA is taking this action to enhance the safety and management of Instrument Flight Rules (IFR) operations for SIAPs at the airport.
Comments must be received on or before September 30, 2013.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200
Scott Enander, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 2601 Meacham Blvd., Fort Worth, TX 76137; telephone: 817–321–7716.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA–2013–0607/Airspace Docket No. 13–ACE–13.” The postcard will be date/time stamped and returned to the commenter.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking (202) 267–9677, to request a copy of Advisory Circular No. 11–2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
This action proposes to amend Title 14, Code of Federal Regulations (14 CFR), part 71 by establishing Class E airspace extending upward from 700 feet above the surface within a 7.7-mile radius to accommodate new standard instrument approach procedures at Loup City Municipal Airport, Loup City, NE. Controlled airspace is needed for the safety and management of IFR operations at the airport.
Class E airspace areas are published in Paragraph 6005 of FAA Order 7400.9W, dated August 8, 2012 and effective September 15, 2012, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would establish controlled airspace at Loup City Municipal Airport, Loup City, NE.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (Air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR Part 71 as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 7.7-mile radius of Loup City Municipal Airport.
Food and Drug Administration, HHS.
Notification of public meeting.
The Food and Drug Administration (FDA or we) is announcing a public meeting to discuss two proposed rules aimed at strengthening assurances that imported food meets the same safety standards as food produced domestically. The Foreign Supplier Verification Programs (FSVP) proposal establishes requirements for importers to verify that their foreign suppliers are implementing the modern, prevention-oriented food safety practices called for by the Food Safety Modernization Act (FSMA) and achieving the same level of food safety as domestic growers and processors. The second proposed rule on the Accreditation of Third-Party Auditors/Certification Bodies would strengthen the quality, objectivity, and transparency of foreign food safety audits on which many U.S. food companies and importers currently rely to help manage the safety of their global food supply chains. The purpose of the public meeting is to solicit oral stakeholder and public comments on the proposed rules and to inform the public about the rulemaking process (including how to submit comments, data, and other information to the rulemaking dockets), and to respond to questions about the proposed rules.
See section II, “How to Participate in the Public Meetings” in the
See section II, “How to Participate in the Public Meetings” in the
FSMA (Pub. L. 111–353), was signed into law by President Obama on January 4, 2011, to better protect public health by helping to ensure the safety and security of the food supply. FSMA amends the Federal Food, Drug, and Cosmetic Act (the FD&C Act) to establish the foundation of a modernized, prevention-based food safety system. Among other things, FSMA requires FDA to issue regulations requiring preventive controls for human food and animal food, set standards for produce safety, and require importers to have a program to verify that the food products they bring into the United States are produced in a manner consistent with U.S. standards.
FSMA was the first major legislative reform of FDA's food safety authorities in more than 70 years, even though FDA has increased the focus of its food safety efforts on prevention over the past several years. In the
In the
FDA is announcing a series of public meetings entitled “The Food Safety Modernization Act Public Meeting on Proposed Rules for Foreign Supplier Verification Programs (FSVP) and for the Accreditation of Third-Party Auditors/Certification Bodies for Imported Food Public Meeting” so that the food industry, consumers, foreign governments, and other stakeholders can better evaluate and comment on the proposals. The Washington, DC public meeting is the first of three that the Agency plans to hold during the proposed rules' comment period. We intend to hold the additional public meetings in diverse geographical regions of the United States. Specific locations, dates, and registration information for these meetings will appear in a separate
FDA is holding the public meetings on the FSVP and the Accreditation of Third-Party Auditors/Certification Bodies proposed rules to inform the public about the rulemaking process, including how to submit comments, data, and other information to the rulemaking docket; to respond to questions about the proposed rules; and to provide an opportunity for interested persons to make oral presentations. Due to limited space and time, FDA encourages all persons who wish to attend the meetings to register in advance. There is no fee to register for the public meetings, and registration will be on a first-come, first-served basis. Early registration is recommended
Those requesting an opportunity to make an oral presentation during the time allotted for public comment at the meeting are asked to submit a request and to provide the specific topic or issue to be addressed. Due to the anticipated high level of interest in presenting public comment and limited time available, FDA is allocating 3 minutes to each speaker to make an oral presentation. Speakers will be limited to making oral remarks; there will not be an opportunity to display materials such as slide shows, videos, or other media during the meeting. If time permits, individuals or organizations that did not register in advance may be granted the opportunity to make an oral presentation. FDA would like to maximize the number of individuals who make a presentation at the meeting and will do our best to accommodate all persons who wish to make a presentation or express their opinions at the meeting.
FDA encourages persons and groups who have similar interests to consolidate their information for presentation by a single representative. After reviewing the presentation requests, FDA will notify each participant before the meeting of the approximate time their presentation is scheduled to begin and remind them of the presentation format (i.e., 3-minute oral presentation without visual media).
While oral presentations from specific individuals and organizations will be necessarily limited due to time constraints during the public meeting, stakeholders may submit electronic or written comments discussing any issues of concern to the administrative record (the docket) for the rulemaking. All relevant data and documentation should be submitted with the comments to the relevant docket, i.e., FSVP, Docket No. FDA–2011–N–0143, or accreditation of third-party auditors, Docket No. FDA–2011–N–0146.
Table 1 of this document provides information on participation in the public meeting:
Information and data submitted voluntarily to FDA during the public meeting will become part of the administrative record for the relevant rulemaking and will be accessible to the public at
Food and Drug Administration, HHS.
Notice of petition.
The Food and Drug Administration (FDA or we) is announcing that we have filed a petition submitted by the Dean Foods Company and the WhiteWave Foods Company proposing that the food additive regulations be amended to provide for the expanded safe uses of vitamin D
The food additive petition was filed on June 27, 2013.
Judith Kidwell, Center for Food Safety and Applied Nutrition (HFS–265), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740–3835, 240–402–1071.
Under section 409(b)(5) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 348(b)(5)), we are giving notice that we have filed a food additive petition (FAP 3A4801), submitted by the Dean Foods Company and the WhiteWave Foods Company, c/o Hogan Lovells US LLP, Columbia Square, 555 Thirteenth Street NW., Washington, DC 20004. The petition proposes to amend 21 CFR 172.379 to provide for the safe use of vitamin D
We have determined under 21 CFR 25.32(k) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
Bureau of Indian Affairs, Interior.
Proposed rule; Reopening of comment period.
In May, the Bureau of Indian Affairs (BIA) published a proposed rule revising a section of regulations governing decisions by the Secretary to approve or deny applications to acquire land in trust. The public comment period for that rule closed in July. This notice reopens the comment period for 15 days.
Comments on the proposed rule published May 29, 2013 (78 FR 32214) must be received by September 3, 2013.
You may submit comments by any of the following methods, though the Federal rulemaking portal or email are the preferred methods:
We cannot ensure that comments received after the close of the comment period (see
Elizabeth Appel, Office of Regulatory Affairs & Collaborative Action, (202) 273–4680;
On May 29, 2013, BIA published a proposed rule revising 25 CFR 151.12 (78 FR 32214). The proposed rule would remove procedural requirements that are no longer necessary in light of the
BIA will also consider any comments that it received between the close of the orginial comment period on July 29, 2013 and the reopening of the comment period on August 16, 2013. If you submitted comments during this period, there is no need to resubmit them.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve a revision to the Knox County portion of the Tennessee State Implementation Plan (SIP), submitted by the State of Tennessee, through the Tennessee Department of Environment and Conservation (TDEC) on December 13,
Written comments must be received on or before September 16, 2013.
Submit your comments, identified by Docket ID No. EPA–R04–OAR–2013–0455, by one of the following methods:
1.
2.
3.
4.
5.
Sean Lakeman, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303–8960. The telephone number is (404) 562–9043. Mr. Lakeman can be reached via electronic mail at
On December 13, 2012, TDEC submitted a SIP revision to EPA for approval into the Knox County portion of the Tennessee SIP. Specifically, the December 13, 2012, SIP revises the definition of “Modification” in Knox County Regulation, section 13.0—
The addition at subparagraph F establishes criteria for which a physical change or change in the method of operation for a minor source does not need a construction permit. These criteria include: (1) The change is not subject to the requirements of the Knox County Title V program (at section 25.70), Prevention of Significant Deterioration (PSD) at Section 45.0 and new source review (NSR) permitting regulations at Section 41.0
EPA is proposing to approve the aforementioned change to Knox County portion of the Tennessee SIP, because it is consistent with EPA policy and the CAA.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposal does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements and Sulfur oxides.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve revisions to the Antelope Valley Air Quality Management District (AVAQMD) and Ventura County Air Pollution Control District (VCAPCD) portions of the California State Implementation Plan (SIP). These revisions concern sulfur oxide emissions from lead smelters and volatile organic compounds (VOC) emissions from the data storage and vacuum producing device industries. We are proposing to rescind local rules that regulate emission sources under the Clean Air Act as amended in 1990 (CAA or the Act).
Any comments must arrive by September 16, 2013.
Submit comments, identified by docket number EPA–R09–OAR–2013–0394 by one of the following methods:
1.
2.
3.
Robert Marinaro, EPA Region IX, (415) 972–3019,
This proposal addresses the following local rules: AVAQMD Rule 1101, “Secondary Lead Smelters/Sulfur Oxides;” VCAPCD Rule 37, “Project XL;” and VCAPCD Rule 67, “Vacuum Producing Devices.” In the Rules and Regulations section of this
We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information please see the direct final action.
U.S. Environmental Protection Agency.
Proposed rule; notice of intent.
The U.S. Environmental Protection Agency Region 5 is issuing a Notice of Intent to Delete the Quincy Smelter and Calumet Lake parcels of OU3 of the Torch Lake Superfund Site (Site), located in Houghton County, Michigan, from the National Priorities List (NPL) and requests public comments on this proposed action. The NPL, promulgated pursuant to Section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is an appendix of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). EPA with the concurrence of the State of Michigan, through the Michigan Department of Environmental Quality (MDEQ), has determined that all appropriate response actions under CERCLA, other than operation, maintenance, and five year reviews, at these identified parcels have been completed. However, this deletion does not preclude future actions under Superfund.
This partial deletion pertains to the surface tailings and slag deposits of the Quincy Smelter and Calumet Lake parcels of OU3. The following parcels or areas will remain on the NPL and are not being considered for deletion as part of this action: Dollar Bay, Point Mills, Boston Pond, and North Entry.
Comments must be received by September 16, 2013.
Submit your comments, identified by Docket ID no. EPA–HQ–SFUND–1986–0005, by one of the following methods:
•
•
•
•
•
Nefertiti DiCosmo, Remedial Project Manager, U.S. Environmental Protection Agency (SR–6J), 77 West Jackson Boulevard, Chicago, IL 60604, (312) 886–6148,
In the “Rules and Regulations” section of today's
For additional information, see the direct final Notice of Partial Deletion which is located in the “Rules and Regulations” section of this
Environmental protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
33 U.S.C. 1321(c)(2); 42 U.S.C. 9601–9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923; 3 CFR, 1987 Comp., p. 193.
Office of Governmentwide Policy (OGP), General Services Administration (GSA).
Proposed rule.
The U.S. General Services Administration (GSA) is proposing to amend the Federal Management Regulation (FMR) to recommend that agencies, as defined in § 102–117.25, provide written authority to Transportation Officers who acquire transportation services utilizing a rate tender acquisition. This written authority would help agencies manage the billions of dollars that the Government spends annually on transportation. This proposed rule, if adopted, would describe procedures that agencies should follow to delegate authority to Transportation Officers and includes experience and training requirements that a Transportation Officer should meet before being authorized to acquire transportation services.
Interested parties should submit comments in writing on or before October 15, 2013 to be considered in the formulation of a final rule.
Submit comments in response to FMR Case 2013–102–1 by any of the following methods:
•
•
Ms. Lee Gregory, Office of Asset and Transportation Management (MA), Office of Governmentwide Policy (OGP), at 202–501–1533 or by email at
Agencies are authorized to procure transportation services either through the Federal Acquisition Regulation (FAR), by utilizing a contract, or via 49 U.S.C. 10721 (for rail transportation), 49 U.S.C. 13712 (for surface transportation), or 49 U.S.C. 15504 (for pipeline transportation) utilizing rate tenders.
Rate tenders are an alternative method of acquiring transportation services that is neither mandatory nor exclusive. In order to determine which method is better suited for the acquisition of transportation services, an evaluation of the transportation services to be acquired must be made. The FMR discusses the criteria for choosing between rate tender and FAR acquisitions in FMR sections 102–117.30 through 102–117.55.
The FAR requires that a Contracting Officer (CO) receive clear instructions in writing regarding the contracting officer's authority (48 CFR 1.603–3). Contracts may be entered into and signed on behalf of the Government only by a contracting officer. In contrast there is no analogous regulation for Federal Transportation Officers under which an appointing official authorizes them to acquire transportation services. However, some agencies have delegations of authority or other agency procedures in place for their workforce.
A Transportation Officer that acquires transportation services through a rate tender acquisition should be qualified and trained in transportation management or have relevant transportation experience in order to manage a rate tender acquisition properly.
GSA published a proposed rule in the
Section 3(a)(1) of the Travel and Transportation Reform Act of 1998 (the Act), Public Law 105–264, amended 31 U.S.C. 3322(c)(1), holding disbursing officials personally liable for overpayments other than an overpayment for the use of improper transportation rates or classifications if the Administrator of General Services has determined that verification by a prepayment audit will not adequately protect the interests of the Government. Similarly, section 3(a)(2) of the Act amended 31 U.S.C. 3528(a)(5), requiring certifying officials to verify transportation rates and classifications and holding such officials personally liable for overpayments unless the overpayment occurred solely because a prepayment audit did not verify the rate
This proposed rule will:
• Define “Third Party Logistics”, “Transportation Officer” and “Transportation Officer Warrant”;
• Recommend that rate tender acquisitions of transportation services for an agency be performed only by a warranted Transportation Officer;
• List the suggested minimum elements of a Transportation Officer warrant;
• Outline the suggested minimum requirements for training and/or experience to be a warranted Transportation Officer;
• Recommend agency procedures for creating a warranted Transportation Officer program; and
• Refer to the liability created by Public Law 105–264, and refer the reader to FMR sections 102–118.350 through 102–118.370 for further information.
In accordance with Executive Order (EO) 13563, this proposed regulation is included in GSA's retrospective review of existing regulations at
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This is not a significant regulatory action, and therefore, will not be subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
While these revisions are substantive, this proposed rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The Paperwork Reduction Act does not apply because the proposed changes to the FMR do not impose recordkeeping or information collection requirements, or the collection of information from offeror, contractors, or members of the public that require the approval of the Office of Management and Budget (OMB) under 44 U.S.C. 3501,
This proposed rule is also exempt from Congressional review prescribed under 5 U.S.C. 801 since it relates solely to agency management or personnel.
Transportation Management.
For the reasons set forth in the preamble, GSA proposes to amend 41 CFR part 102–117 as follows:
31 U.S.C. 3726; 40 U.S.C. 121(c); and 40 U.S.C. 501,
Transportation Officer's duties include:
(a) Negotiating rates;
(b) Signing bills of lading;
(c) Certifying bills of lading;
(d) Approving additional accessorial charges;
(e) Selecting and procuring services of a TSP; and/or
(f) Selecting and procuring services of a 3PL.
Yes, it is recommended that you have a written document, such as a warrant, issued by the head of your agency or his/her designee, which expressly allows you to acquire transportation services using approved non-FAR acquisition methods for specified transportation services and states dollar limit or range for the warrant authority.
Yes, a Transportation Officer warrant is not necessary to:
(a) Ship packages through a contract under the GSA Schedules program, including any Blanket Purchase Agreement, as these are Federal Acquisition Regulation (FAR) based contracts;
(b) Ship packages or other materials through any other FAR-based contract; or
(c) Send items through the United States Postal Service.
The warrant issued by the agency head or his/her designee should:
(a) State that you have sufficient experience (any combination of Federal, public, or commercial) and/or training in transportation services that qualify you to acquire transportation;
(b) List the limitations on the scope of your authority, including the maximum dollar limit and any other limits such as the types of services that you may acquire;
(c) State the minimum requirements necessary to maintain the warrant; and
(d) Include an expiration date for the warrant, recommended not to exceed three years from the date of issuance.
No. GSA can provide your agency with a suggested format; agencies can model the transportation officer warrant after the contracting officer warrant; or agencies may establish their own format.
(a) Your agency should establish training and/or experience requirements to qualify you for a Transportation Officer warrant. The following are suggested baseline training and/or experience requirements:
(1)
(i) Twenty-four (24) hours of training in Federal civilian transportation; or
(ii) Two years of Federal, public, or commercial experience in acquiring transportation through rate tenders.
(2)
(i) Thirty-two (32) hours of training in transportation, including 20 hours of training in Federal civilian transportation; or
(ii) Three years of Federal, public, or commercial experience in acquiring transportation through rate tenders.
(3)
(i) Sixty (60) hours of training in transportation, including 40 hours of training in Federal civilian transportation; or
(ii) Five years of Federal, public, or commercial experience in acquiring transportation through rate tenders.
(b) GSA created an online eLearning Transportation Officer training site hosted by the U.S. Office of Personnel Management. The training courses provide a standard Governmentwide body of transportation knowledge. This web-based eLearning site is available at
Yes, you should continue your training. Your agency will determine the continuing education requirements that apply specifically to your warrant. It is recommended that at least 12 hours of transportation training per year be completed in order to maintain a Transportation Officer warrant.
The head of your agency or his/her designee should state, in writing, that you have the recommended training or experience suggested by § 102–117.390. You should retain a copy of this Transportation Officer warrant. Agency heads or their designees may amend, suspend, or terminate warrants in accordance with agency policies and/or procedures.
Yes, a limitation on the dollar amount you may acquire using your transportation officer warrant should be established by your agency and should be stated in your warrant.
For information regarding liabilities, see 41 CFR 102–118.350 through 102–118.370, as applicable, if the Transportation Officer is also the certifying official and/or the disbursing official.
Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
PHMSA is proposing to amend the pipeline safety regulations to incorporate by reference (IBR) all or parts of new, updated, or reaffirmed editions of voluntary consensus standards that are available on the Internet, free-of-charge, to the public. PHMSA is also proposing to make non-substantive edits and to clarify regulatory language in certain provisions. These proposed changes are relatively minor, and would not require pipeline operators to undertake any significant new pipeline safety initiatives.
Submit comments on the subject of this NPRM on or before October 15, 2013.
You may submit comments, identified by docket ID PHMSA–2011–0337, by any of the following methods:
All comments received will be posted without edits to
The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104–113; March 7, 1996) directs Federal agencies to use voluntary consensus standards and design specifications developed by voluntary consensus standard bodies instead of government-developed voluntary technical standards, when applicable. The Office of Management and Budget (OMB) Circular A–119: “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities” sets the policy for Federal use and development of voluntary consensus standards. As defined in OMB Circular A–119, voluntary consensus standards are technical standards developed or adopted by organizations, both domestic and international. These organizations use agreed upon procedures to update and revise their published standards every three to five years to reflect modern technology and best technical practices.
The legal effect of incorporation by reference is that the material is treated as if it were published in the
There are 64 standards and specifications incorporated by reference in 49 CFR part 192, Transportation of Natural and Other Gas by Pipeline: Minimum Federal Safety Standards; 49 CFR part 193, Liquefied Natural Gas Facilities: Federal Safety Standards; and 49 CFR part 195, Transportation of Hazardous Liquids by Pipeline.
PHMSA regularly reviews updates to currently referenced consensus standards as well as new editions to ensure that the content remains consistent with the intent of the pipeline safety regulations. PHMSA employees participate in more than 25 national voluntary consensus standards-setting organizations that address pipeline design, construction, maintenance, inspection, and repair. As representatives of the agency, these subject matter experts actively participate in discussions and technical debates, register opinions and vote in accordance with the procedures of the standards body at each stage of the standards development process (unless prohibited from doing so by law). However, it is important to note that agency participation does not necessarily constitute agency agreement with, or endorsement of, decisions reached by such organizations. PHMSA has the ultimate responsibility to ensure public safety and will only adopt those portions of standards into the Federal regulations that meet the agency's directive(s) to ensure the best interests of public safety are served. Agency participation in the development of voluntary consensus standards is important to eliminate the necessity for development or maintenance of separate government-unique standards; to further national goals and objectives such as increased use of environmentally sound and energy efficient materials, products, systems, services, or practices; and to improve public safety. New or updated standards often further innovation and increase the use of new technologies, materials, and management practices that improve the safety and operations of pipelines and pipeline facilities.
Section 24 of the “Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011” (Pub. L. 112–90, January 3, 2012), amended 49 U.S.C. 60102 by adding a new requirement on documents incorporated by reference after January 3, 2013. The law states, “Beginning 1 year after the date of enactment of this subsection, the Secretary may not issue guidance or a regulation pursuant to this chapter that incorporates by reference any documents or portions thereof unless the documents or portions thereof are made available to the public, free of charge, on an Internet Web site.” To meet this requirement, PHMSA negotiated agreements with the majority of the standards-setting organizations with documents incorporated by reference in the pipeline safety regulations. These organizations are:
Each of the organizations' mailing addresses and Web sites are listed in Parts 192, 193, and 195. In this NPRM, PHMSA has identified two new standards (one to be partially incorporated) and 21 updated editions of currently referenced standards to incorporate in Parts 192, 193, and 195. PHMSA also is proposing miscellaneous edits to the pipeline safety regulations, including removing § 199.111 because the requirements in that section are adequately covered by 49 CFR part 40.
Previous updates to incorporate industry standards by reference were published on August 11, 2010, (75 FR 48593), February 1, 2007, (72 FR 4657), June 9, 2006, (71 FR 33402), June 14, 2004, (69 FR 32886), February 17, 1998, (63 FR 7721), June 6, 1996, (61 FR 2877) and May 24, 1996, (61 FR 26121).
PHMSA is proposing to adopt API Recommended Practice 5LT, “Recommended Practice for Truck
During its investigation of a July 2002 pipeline incident, the NTSB determined that the probable cause of the pipeline rupture was inadequate loading of the pipe for transportation that allowed a fatigue crack to initiate along the seam of the longitudinal weld during transit. NTSB recommended that PHMSA revise its regulations to require that the transportation of all pipe be subject to API standards. In a final rule published on August 11, 2010, titled, “Periodic Updates of Regulatory References to Technical Standards and Miscellaneous Edits,” (Docket No. PHMSA–2008–0301, (75 FR 48593)), PHMSA incorporated by reference the, “Recommended Practice for Railroad Transportation of Line Pipe,” API RP 5L1, as rail transportation has generally been considered to be the most likely source of transit fatigue cracking. At the same time, PHMSA and the API formed a working group to evaluate the need for a truck transportation standard to prevent damage to pipe as recommended by NTSB. A standard was drafted and published in March 2012. Thus, PHMSA is proposing to incorporate by reference this new standard as follows:
PHMSA is proposing to incorporate by reference ASTM D2513–09a, “Standard Specification for Polyethylene (PE) Gas Pressure Pipe, Tubing, and Fittings,” for PE materials, except for section 4.2 which addresses rework material. Section 4.2 states: “Clean rework material of the same commercial designation, generated from the manufacturer's own pipe and fitting production shall not be used unless the pipe and fitting produced meets all the requirements of this specification. The use of these rework materials shall be governed by the requirements of section 4.3 and PPI Technical Note (TN)–30/2006.” In PE pipe, “rework materials shall be limited to a maximum of 30% by weight.”
The main steps of PE pipe manufacturing include an extrusion process where raw material (usually supplied in the form of pellets) is heated, melted, mixed and conveyed into a die and shaped into a pipe. Rework (also known as regrind) is a process by which plastic pipe that does not fall within acceptable specifications following the extrusion process can be reused if it meets certain requirements. Such requirements include reducing the size of the material through appropriate stages (i.e., regrinding the material) and avoiding introducing contamination. The end goal is for the material to have an equivalent cleanliness and size to the virgin material prior to going back through the extrusion process. Additional requirements are discussed in PPI TN–30/2006, “Requirements for the Use of Rework Materials in Manufacturing of Polyethylene Gas Pipe” available publicly at
For additional technical basis, PHMSA is inviting comments on prohibiting rework materials, as well as potential alternatives for limiting the use of rework materials. For example, one alternative might be to establish limits on the use of rework materials by pipe diameter (e.g., no rework material is allowed for pipe two inches Iron Pipe Size (IPS) and below in diameter and the requirements in ASTM D2513–09a, section 4.2 would be acceptable for pipe larger than two inches IPS in diameter). Another alternative might be to allow rework material as required by ASTM D2513–09a, section 4.2, in which case ASTM D2513–09a could possibly be incorporated in whole.
PHMSA is not aware of a specific root cause or technical analyses that would indicate rework (including up to 30%) as a contributing factor in incidents. At the same time, PHMSA is not aware of specific information that discounts rework as a risk. PHMSA is, however, aware that some operators do not allow any rework material. PHMSA is also aware that there is a work item through the ASTM F17.60 committee considering an amendment to ASTM D–2513 that would prohibit rework completely.
With respect to a limitation by diameter, once again, PHMSA does not have firm evidence that two inches is a specific and critical threshold for rework. Smaller diameter pipe (two-inch IPS and less), however, has proven to be more susceptible to past material issues due to typically having a thinner wall. Also, this smaller diameter pipe is often in closer proximity to the customer as it is used as service line piping leading up to end users of natural gas, increasing the potential impact if an incident were to occur.
It should be noted that ASTM D2513–09a is exclusively a PE standard, while the 1999 version addresses other non-metallic piping materials. PHMSA proposes for other non-PE plastic materials to continue to reference the ASTM D2513–87 (for § 192.63 only, marking of materials) and ASTM D2513–99 (except section 4.2 pertaining to rework material) for §§ 192.59 (d); 192.191(b); 192.281(b)(2); 192.283(a)(1)(i); and Item 1, Appendix B to Part 192).
PHMSA believes the incorporation of ASTM D 2513–09a, along with retention of ASTM D2513–87 and 99 is consistent with the petitions for rulemaking received from the the Gas Piping Technology Committee (GPTC) and the American Gas Association. GPTC petitioned PHMSA to adopt ASTM D2513–09a because of significant changes made to ASTM D2513 in the past 10 years. These changes include a new requirement for outdoor storage of PE pipe—three years for yellow pipe and 10 years for black pipe; new high performance PE pipe material designation codes, with increased long-term performance requirements; and more stringent requirements for use of rework material in PE gas pipe. AGA's September 9, 2009 petition requested that PHMSA incorporate by reference the part of ASTM D2513 (2009) addressing color and UV stablizer (Section A1.3.5). PHMSA agrees that the new standard will improve safety, long-term performance, and quality of PE gas distribution pipe.
Therefore, PHMSA is proposing to IBR ASTM D 2513–09a as referenced below and will continue to reference the 1987 and 1999 editions discussed above.
PHMSA is not proposing to incorporate the updated editions of the following documents at this time:
PHMSA is not proposing to incorporate by reference the second edition of the API Recommended Practice (RP) 1162. PHMSA and the state pipeline authorities conducted public awareness effectiveness inspections to assess compliance with Federal regulations that incorporate the first edition of API RP 1162. These were completed in December 2012. Additionally, PHMSA held a public awareness workshop in June 2013 to discuss ways to improve public awareness programs and whether or not to incorporate the second edition of this standard. PHMSA is analyzing the results of the inspections and workshop and will make a determination whether or not to incorporate the second edition at a later date. Therefore, at this time, PHMSA will continue to incorporate the first edition of API RP 1162. The reference for API RP 1162 will remain as follows:
PHMSA is not proposing to incorporate by reference API Standard 653, (4th edition) and Addendum (2010) at this time. PHMSA will continue to review this document for consideration in a future update.
Rather, PHMSA is proposing to continue to incorporate the third edition of API Standard 653, “Tank Inspection, Repair, Alteration, and Reconstruction” (3rd edition, 2001), except section 6.4.3. PHMSA is proposing to eliminate the incorporation of section 6.4.3 as it applies to risk-based inspection (RBI) intervals (49 CFR 195.432). PHMSA believes API needs to eliminate the criteria stated in the risk-based option for the inspection interval of a breakout tank listed in API Standard 653. An alternate inspection interval based on a risk-based algorithm generally uses a standardized set of factors. These factors are weighted to calculate the risk of failure with a longer inspection interval. Section 6.4.3 of API Standard 653 (3rd edition) provides no standardized methodology for calculating or determining an alternate inspection interval nor does it provide for a minimum bottom plate thickness in the tank. This thickness is determined as part of the RBI analysis and could conceivably be set at a thickness where leakage may be eminent. Without proper guidance for using an alternate RBI, PHMSA believes that this would not be consistent with safety. Therefore, PHMSA will no longer incorporate section 6.4.3 of API Standard 653 (3rd edition, 2001). The reference to API Standard 653 in the pipeline safety regulations will be changed as follows:
PHMSA proposes to IBR the following updated editions of currently-referenced standards in Parts 192, 193 and 195.
Replaces IBR: API Recommended Practice 5L1, “Recommended Practice for Railroad Transportation of Line Pipe,” (6th Edition, 2002);
Referenced in 49 CFR 192.65; 195.207.
Replaces IBR: API Recommended Practice 5LW, “Transportation of Line Pipe on Barges and Marine Vessels,” (2nd edition, December 1996, effective March 1, 1997);
Referenced in 49 CFR 192.65; 195.207.
Replaces IBR: ANSI/API Specification 5L/ISO 3183, “Specification for Line Pipe,” (44th edition, 2007), includes errata (January 2009) and addendum (February 2009);
Referenced in 192.55; 192.112; 192.113; and Item 1, Appendix B to Part 192; 195.106.
Replaces IBR: ANSI/API Specification 6D, “Specification for Pipeline Valves,” (23rd edition (April 2008, effective October 1, 2008)) and errata 3 (includes 1 and 2, February 2009);
Referenced in 49 CFR 192.145; 195.116.
Replaces IBR: API Specification 12F, “Specification for Shop Welded Tanks for Storage of Production Liquids,” (11th edition, November 1, 1994, reaffirmed 2000, errata, February 2007);
Referenced in 49 CFR 195.132; 195.205; 195.264; 195.307; 195.565; 195.579.
Replaces IBR: API Standard 620, “Design and Construction of Large, Welded, Low-Pressure Storage Tanks,” (11th edition, February 2008, addendum 1 March 2009);
Referenced in 49 CFR 193.2101; 193.2321; 195.132; 195.205; 195.264; 195.307; 195.565; 195.620.
Replaces IBR: API Standard 650, “Welded Steel Tanks for Oil Storage,” (11th edition, June 2007), addendum 1, November 2008, and addendum 2 (2009);
Referenced in 49 CFR 195.132; 195.205; 195.264; 195.307; 195.565; 195.579.
Replaces IBR: API Standard 2000, “Venting Atmospheric and Low-Pressure Storage Tanks Non-Refrigerated and Refrigerated,” (5th edition, April 1998, errata, November 1999);
Referenced in 49 CFR 195.264.
Replaces IBR: ASTM A53/A53M–07, “Standard Specification for Pipe, Steel,
Referenced in 49 CFR 192.113; Item 1, Appendix B to Part 192; and 195.106.
Replaces IBR: ASTM A106/A106M–08, “Standard Specification for Seamless Carbon Steel Pipe for High-Temperature Service,” (July 15, 2008);
Referenced in 49 CFR 192.113; Item 1, Appendix B to Part 192; and 195.106.
Replaces IBR: ASTM A333/A 333M–05, “Standard Specification for Seamless and Welded Steel Pipe for Low-Temperature Service;” (March 1, 2005);
Referenced in 49 CFR 192.113; Item 1, Appendix B to Part 192; and 195.106.
Replaces IBR: ASTM A372/A372M–03 (reapproved), “Standard Specification for Carbon and Alloy Steel Forgings for Thin-Walled Pressure Vessels,” (March 1, 2008);
Referenced in 49 CFR 192.177.
Replaces IBR: ASTM A671–06 (2006) “Standard Specification for Electric-Fusion-Welded Steel Pipe for Atmospheric and Lower Temperatures,” (May 1, 2006);
Referenced in 49 CFR 192.113; Item 1, Appendix B to Part 192; and 195.106.
Replaces IBR: ASTM A672–08, “Standard Specification for Electric-Fusion-Welded Steel Pipe for High-Pressure Service at Moderate Temperatures,” (May 1, 2008);
Referenced in 49 CFR 192.113; Item 1, Appendix B to Part 192; 195.106.
Replaces IBR: ASTM A691–98 (reapproved 2007), “Standard Specification for Carbon and Alloy Steel Pipe, Electric-Fusion-Welded for High-Pressure Service at High Temperatures,” (November 1, 2007);
Referenced in 49 CFR 192.113; Item 1, Appendix B to Part 192; and 195.106.
Replaces IBR: MSS SP–44–2006, Standard Practice, “Steel Pipeline Flanges,” (2006 edition);
Referenced in 49 CFR 192.147.
Replaces IBR: MSS SP–75–2004, “Specification for High Test Wrought Butt Welding Fittings,” (2004 edition);
Referenced in 49 CFR 195.118.
Replaces IBR: NACE SP0502–2008, Standard Practice, “Pipeline External Corrosion Direct Assessment Methodology,” (reaffirmed March 20, 2008);
Referenced in 49 CFR 192.923; 192.925; 192.931; 192.935; 192.939; 195.588.
Replaces IBR: NFPA–30, “Flammable and Combustible Liquids Code,” (2008 edition, approved August 15, 2007);
Referenced in 49 CFR 192.735; 195.264.
Replaces IBR: NFPA 70 (2008), “National Electrical Code,” (NEC 2008) (Approved August 15, 2007);
Referenced in 49 CFR 192.163; 192.189.
All incorporated by reference documents are available for visual inspection at the following locations:
All the standards addressed in this NPRM are also available for free on the internet. Direct links to those SDO Web sites are be listed on the PHMSA Web site at:
In this NPRM, PHMSA is also proposing non-substantive editorial amendments and clarifications to the pipeline safety regulations.
In § 192.283 (a)(1)(i), the language “or paragraph 8.9 (Sustained Static Pressure Test)” has been deleted as PHMSA believes the reference is an error. Paragraph 8.9 does not exist in ASTM D2513–99 nor does it appear in several other versions of this referenced standard. Staff researched several editions of ASTM D2513, the pipeline safety regulations, and
Section 195.452(l) states that an operator must maintain certain records for review during an integrity management (IM) inspection. PHMSA is proposing to clarify this section by specifying that records for IM compliance must be maintained for the useful life of the pipe.
PHMSA is removing § 199.111 because the requirements conflict with 49 CFR Part 40 and create compliance
Moreover, Part 40 requirements preclude testing the split specimen through the testing laboratory that evaluated the first specimen (i.e., Sample A). Conversely, § 199.111 allows utilizing the testing laboratory that tested the first specimen. This is not only contrary to Part 40 requirements, but also creates a compliance controversy for both the MRO and the operator as to which regulation to comply with.
PHMSA must enforce both Part 199 and Part 40 requirements and therefore PHMSA proposes to eliminate § 199.111 in its entirety.
PHMSA is proposing to change the “Centralized IBR sections” from the current table format to a listing. In addition, PHMSA is adding standard abbreviations for each of the titles incorporated by reference. The purpose of this change is to conform with guidance provided by the
This NPRM is published under the authority of the Federal pipeline safety law (49 U.S.C. 60101 et seq.). Section 60102 authorizes the Secretary of Transportation to issue regulations governing design, installation, inspection, emergency plans and procedures, testing, construction, extension, operation, replacement, and maintenance of pipeline facilities. Further, Section 60102(l) of the Federal pipeline safety law states that the Secretary shall, to the extent appropriate and practicable, update incorporated industry standards adopted as a part of the Federal pipeline safety regulations. If adopted as proposed, this NPRM would IBR two new editions (one partially incorporated) and 21 updated standards of those currently referenced standards (wholly or in part). In addition, if adopted as proposed, this NPRM would make miscellaneous and editorial changes to the pipeline safety regulations.
This NPRM is not considered a significant regulatory action under section 3(f) of Executive Order 12866 (58 FR 51735) and, therefore, was not subject to review by the Office of Management and Budget. This NPRM is also considered non-significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034).
In accordance with the National Technology and Advancement Act of 1995 (“the Act”) and OMB Circular A–119, “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities,” PHMSA periodically reviews and updates the standards incorporated by reference to include new editions. In this NPRM, if adopted as proposed, we would incorporate two new standards API RP 5LT; partially incorporate ASTM D2513–09a (except section 4.2 pertaining to rework materials); and update 21 of those currently referenced standards and specifications in 49 CFR Parts 192, 193, and 195. The majority of these standards are created by national voluntary consensus standards developing organizations that address pipeline design, construction, maintenance, inspection, and repair. Others are developed by organizations using a consensus setting process to develop guidance in the form of standards, publications, and recommended practices. The government decreases the burden on the regulated industry by adopting consensus standards that provide the most current industry practices and guidance developed together with industry experts. This practice is consistent with the National Technology and Advancement Act of 1995 and the OMB policy directives. This practice also avoids the possibility of burdening industry with potentially conflicting regulations and industry practices.
According to the annual reports submitted by pipeline operators to PHMSA, there are over 2,370 entities operating hazardous liquid, natural gas transmission, gathering, and distribution systems, and liquefied natural gas facilities as of December 31, 2011. The incorporation of these standards is not expected to have any additional cost of compliance to these entities, but is expected to encourage safer long-term growth for the pipeline industry by promoting efficiency and economic competition through harmonization of standards.
PHMSA anticipates the proposals contained in this rule will enhance safety and reduce the compliance burden on the regulated industry. Industry standards developed and adopted by consensus generally are accepted and followed by the pipeline industry, thus assuring that the industry is not forced to comply with a number of different standards to accomplish the same safety goal.
In addition to incorporating new and updating existing voluntary consensus standards, PHMSA is taking this opportunity to make non-substantive edits and to clarify regulatory language in certain provisions. Since these proposed editorial changes are regarded relatively minor, the NPRM would not require pipeline operators to undertake any significant new pipeline safety initiatives and would not have any cost implications, but would increase the clarity of the pipeline safety regulations, promoting improved compliance and safety of the nation's pipeline systems.
Executive Order 13563 is supplemental to and reaffirms the principles, structures, and definitions governing regulatory review that were
In this NPRM, PHMSA is involving the public in the regulatory process in a variety of ways. Specifically, PHMSA is addressing issues and errors that were identified and tagged for future rulemaking consideration in letters received by the regulated community and through meetings and other correspondence with stakeholders. PHMSA is asking for public comments based on the proposals in this NPRM. Upon receipt of public comment and confirmation of the standards availability to the public free of charge on the Internet, PHMSA will discuss with the members of its two advisory committees and then address all substantive comments in the next rulemaking action under this docket.
The incorporation of the two new editions (one partially) and updates to 21 other standards promote simplification and harmonization through adoption of consensus standards developed by pipeline experts nationwide and internationally. For example, PHMSA is proposing to IBR a new standard, API Recommended Practice 5LT, “Recommended Practice for Truck Transportation of Line Pipe,” (First edition, March 1, 2012) to reduce the risk of a pipeline rupture from pipe that is inadequately loaded for transportation by truck. This standard will decrease the probability of fatigue cracking along the seam of the longitudinal weld during transit and thereby improving safety. This action also responds to an NTSB recommendation.
In § 192.283, PHMSA is proposing to IBR ASTM D2513–09a, “Standard Specification for Polyethylene (PE) Gas Pressure Pipe, Tubing, and Fitting,” for PE materials (except section 4.2) to ensure correct marking of (PE) materials. PHMSA is also seeking public comment and additional information on the issue of reworked material (section 4.2) prior to incorporating that section of the new standard.
These standards, if adopted as proposed, are expected to produce a safety benefit derived from new requirements to safely transport pipe by truck and by improved marking specifications of PE pipe.
There are minimal additional costs. The clarity will result in net benefits.
This NPRM was analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This NPRM would not have a substantial direct effect on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. This NPRM would not impose substantial direct compliance costs on State and local governments nor will it preempt state law for intrastate pipelines. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
PHMSA has analyzed this NPRM according to Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this NPRM would not significantly or uniquely affect the communities of the Indian tribal governments or impose substantial direct compliance costs, the funding and consultation requirements of Executive Order 13175 would not apply.
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), requires an agency to review regulations to assess their impact on small entities unless the agency determines the rule is not expected to have a significant impact on a substantial number of small entities. This NPRM would ensure that pipeline operators are using the new or updated editions of technical standards incorporated by reference. In addition, this NPRM would improve the clarity of several requirements. There are over 2,300 operating entities submitting annual reports describing the physical and certain operating characteristics of hazardous liquid, natural gas transmission, gathering, and distribution systems, and liquefied natural gas facilities as of December 31, 2010. According to PHMSA data, Dun and Bradstreet identified about 600 active operating entities as a small business (i.e., about 25% of the active operating entities may be classified as a small business).
Codes and standards developed by technical committees are, for the most part, comprised of experts who represent the various facets of a given industry, such as manufacturers, installers, insurers, inspectors, end users, distributors, and regulatory agencies. Participants represent both large and small businesses and others. An example of the make-up of a typical standards committee may include representatives from large and small operating companies (engineers, researchers, or risk management officers), government (Federal/state), risk management consultants, insurance administrators; academics and individuals. Meetings are open to the public. The Committees involved in developing, revising and approving consensus standards by organizations such as the API or AGA include technical experts, operating companies, vendors, consultants, academia and regulators. An example of a small business may include technical experts from a publicly owned natural gas local distribution company.
The impact of this NPRM is not expected to be significant and the proposed changes are not expected to have any increase in compliance cost regardless of the size of the firm. The proposed changes are intended to update current editions of industry standards to allow for the use of newer or updated safety procedures to promote uniformity among industry practices. Changes in standards employing performance-based approaches have resulted in less costly changes to an organization's manufacturing processes.
Therefore, PHMSA concludes this NPRM would not have a significant economic impact on any small entity.
The impact of this NPRM will be minimal. The proposed changes are generally intended to provide industry guidance through adoption of newer editions of consensus standards and recommended practices.
Based on the facts available about the anticipated impact of this rulemaking, I certify, under Section 605 of the Regulatory Flexibility Act (5 U.S.C. 605) that this NPRM will not have a significant economic impact on a substantial number of small entities.
This NPRM does not impose any new information collection requirements.
A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.
This NPRM would not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It would not result in costs of $100 million (adjusted for inflation currently estimated to be $132 million) or more in any one year to either state, local, or tribal governments, in the aggregate, or to the private sector, and would be the least burdensome alternative that achieves the objective of the NPRM.
Anyone may search the electronic form of comments received in response to any of our dockets by the name of the individual submitting the comment (or signing the comment if submitted for an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
The National Environmental Policy Act of 1969, 42 U.S.C. 4321–4375, requires Federal agencies to analyze proposed actions to determine whether the action will have a significant impact on the human environment. The Council on Environmental Quality (CEQ) regulations require Federal agencies to conduct an environmental review considering: (1) The need for the proposed action; (2) alternatives to the proposed action; (3) probable environmental impacts of the proposed action and alternatives; and (4) the agencies and persons consulted during the consideration process (40 CFR 1508.9(b)). In this NPRM, PHMSA proposes to IBR two new standards (one partially) and to incorporate 21 updated standards of those currently-referenced. If adopted as proposed, this NPRM would also make miscellaneous and editorial changes to the pipeline safety regulations.
PHMSA engineers and subject matter experts participate on approximately 25 standards development committees to keep current on committee actions. PHMSA will only propose to adopt standards into the Federal regulations that meet the agency's directive(s) to ensure the best interests of public and environmental safety are served.
PHMSA technical experts continually review the actions of the pipeline standards developing committees and study industry safety practices to ensure their endorsement of any new editions or revised standards incorporated into the Federal safety regulations will improve public safety, as well as, provide protections for the environment. If PHMSA does not amend the Federal safety standards to keep up with industry practices, it could potentially have an adverse effect on the transportation of energy resources.
Alternative (1): Take no action and continue to incorporate the existing standards currently referenced in the pipeline safety regulations.
Because our goal is to facilitate pipeline safety, we rejected the alternative to take no action.
Alternative (2): Go forward with the proposed amendments and incorporate updated editions of voluntary consensus standards to allow pipeline operators to use current technologies. This is the selected alternative.
Our goal is to incorporate by reference into the pipeline safety regulations all or parts of updated editions of voluntary consensus standards to allow pipeline operators to use current technology, new materials, and other industry and management practices. In addition, PHMSA's goal is to update and clarify certain provisions in the regulations. These proposed amendments would make the regulatory provisions more consistent with current technology and would therefore promote the safe transportation of hazardous liquids, natural and other gases, and liquefied natural gas by pipeline.
If these amendments are adopted as proposed, the pipeline safety regulations would not require pipeline operators to undertake any significant new pipeline safety initiatives. In fact, by updating several of the currently referenced standards, pipeline operators may find it easier to comply with certain provisions. For example, the GPTC, consisting of approximately 100 members with technical expertise in natural gas distribution, transmission, and gathering systems, petitioned PHMSA to adopt the 2009a version of ASTM D2513, “Standard Specification for Thermoplastic Gas Pressure Pipe, Tubing and Fittings.” ASTM D2513–09a covers polyethylene (PE), the most widely used piping material for gas distribution. This newer edition updates outdoor storage requirements for PE pipe and incorporates the new high performance PE pipe materials designation codes, with increased long-term performance requirements. PHMSA is proposing to partially incorporate this standard.
Pipelines subject to this NPRM transport hazardous liquids and natural gas and therefore a spill or leak of the product could affect the physical environment as well as the health and safety of the public. The release of a hazardous liquid and natural gas can
Compliance with the pipeline safety regulations substantially reduces the possibility of an accidental release of materials. Updating industry standards incorporated in the pipeline safety regulations adopts the advantages of new technology and enhances safety and environmental protection.
Transporting gas affects the nation's available energy supply. However, this NPRM would not be a significant energy action under Executive Order 13211. It also would not be a significant regulatory action under Executive Order 12866 and would not be likely to have a significant adverse effect on the supply, distribution, or use of energy. Further, the Administrator of the Office of Information and Regulatory Affairs would not be likely to identify this NPRM has a significant energy action.
Incorporation by Reference, Natural Gas, Pipeline safety.
Incorporation by Reference, Liquefied Natural gas, Pipeline safety.
Anhydrous ammonia, Carbon Dioxide, Incorporation by Reference, Petroleum Pipeline safety.
Drug and Alcohol Testing.
In consideration of the foregoing, PHMSA proposes to amend 49 CFR Parts 192, 193, 195, and 199 as follows:
1. The authority citation for part 192 continues to read as follows:
49 U.S.C. 5103, 60102, 60104, 60108, 60109, 60110, 60113, 60116, 60118 and 60137; and 49 CFR 1.53.
(a) This part prescribes standards, or portions thereof, incorporated by reference. The material incorporated by reference is treated as if it were published in full in the
(1)
(i) The Office of Pipeline Safety, Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue SE., Washington, DC, 20590–0001. For information contact 1–202–366–202–4046 or go to:
(ii) The National Archives and Records Administration (NARA), Office of the Federal Register (OFR), 800 North Capitol Street NW., Suite 700, Washington, DC 20001. For information on the availability of this material and how to make an appointment, contact NARA, by telephone 202–741–6030 or go to:
(iii) The respective standards-developing organizations listed in this part.
(2) For information concerning standards available free of charge for visual inspection, please see the links on PHMSA's Web site at:
(3)
(b) American Petroleum Institute (API), 1220 L Street NW., Washington, DC 20005, phone: 202–289–2250,
(1) API Recommended Practice 5L1, “Recommended Practice for Railroad Transportation of Line Pipe” (7th Edition, September 2009), (API RP 5L1), IBR approved for § 192.65(a).
(2) API Recommended Practice 5LT, “Recommended Practice for Truck Transportation of Line Pipe” (March 12, 2012), (API RP 5LT IBR approved for § 192.65(c).).
(3) API Recommended Practice 5LW, “Transportation of Line Pipe on Barges and Marine Vessels” (3rd edition, September 2009) (API RP 5LW). IBR approved for § 192.65(b).
(4) API Recommended Practice 80, “Guidelines for the Definition of Onshore Gas Gathering Lines” (1st edition, April 2000) (API RP 80), IBR approved for § 192.8(a).
(5) API Recommended Practice 1162, “Public Awareness Programs for Pipeline Operators” (1st edition, December 2003) (API RP 1162), IBR approved for § 192.616(a), (b), (c).
(6) API Recommended Practice 1165, “Recommended Practice for Pipeline SCADA Displays” (First edition (January 2007)) (API RP 1165), IBR approved for § 192.631(c).
(7) ANSI/API Specification 5L/ISO 3183, “Specification for Line Pipe” (45th edition, 12–1–2012) (ANSI/API Spec 5L), IBR approved for §§ 192.55(e); 192.112(a), (b), (d), (e); 192.113; and Item I, Appendix B to Part 192.
(8) ANSI/API Specification 6D, “Specification for Pipeline Valves” (23rd edition, April 2008, effective October 1, 2008) and errata 3 (Includes Errata 1, 2, 3, 4, 5, and 6 (2011) and Addenda 1 and 2 (2011)) (ANSI/API Spec 6D), IBR approved for § 192.145(a).
(9) API Standard 1104, “Welding of Pipelines and Related Facilities” (20th edition, October 2005, errata/addendum, (July 2007) and errata 2 (2008) (API Std 1104) IBR approved for §§ 192.225(a); 192.227(a); 192.229(c); 192.241(c); and Item II, Appendix B.
(c) ASME International (ASME), Three Park Avenue, New York, NY 10016–5990, 800–843–2763 (U.S/Canada),
(1) ASME/ANSI B16.1–2005, “Gray Iron Pipe Flanges and Flanged Fittings: (Classes 25, 125, and 250)” (August 31, 2006) (ASME/ANSI B16.1), IBR approved for § 192.147(c).
(2) ASME/ANSI B16.5–2003, “Pipe Flanges and Flanged Fittings” (October 2004) (ASME/ANSI B16.5), IBR approved for §§ 192.147(a) and 192.279.
(3) ASME/ANSI B31G–1991 (Reaffirmed; 2004), “Manual for Determining the Remaining Strength of Corroded Pipelines” (ASME/ANSI B31G), IBR approved for §§ 192.485(c) and 192.933(a).
(4) ASME/ANSI B31.8–2007, “Gas Transmission and Distribution Piping Systems” (November 30, 2007) (ASME/ANSI B31.8), IBR approved for §§ 192.112(b) and 192.619(a).
(5) ASME/ANSI B31.8S–2004, “Supplement to B31.8 on Managing System Integrity of Gas Pipelines” (ASME/ANSI B31.8S–2004), IBR approved for §§ 192.903(c); 192.907(b); 192.911(h), (k), (l), and (m); 192.913(a), (b), (c); 192.917(a), (b), (c), (d), (e); 192.921(a); 192.923(b); 192.925(b); 192.927(b), (c); 192.929(b); 192.933(c), (d); 192.935(a), (b); 192.937(c); 192.939(a); and 192.945(a).
(6) ASME Boiler & Pressure Vessel Code, Section I, “Rules for Construction of Power Boilers 2007” (2007 edition, July 1, 2007) (ASME BPVC, Section I), IBR approved for § 192.153(b).
(7) ASME Boiler & Pressure Vessel Code, Section VIII, Division 1 “Rules for Construction of Pressure Vessels” (2007 edition, July 1, 2007) (ASME BPVC, Section VIII, Division 1), IBR approved for §§ 192.153(a), (b), (d) and 192.165(b).
(8) ASME Boiler & Pressure Vessel Code, Section VIII, Division 2 “Alternate Rules, Rules for Construction of Pressure Vessels” (2007 edition, July 1, 2007) (ASME BPVC, Section VIII, Division 2), IBR approved for § 192.165(b).
(9) ASME Boiler & Pressure Vessel Code, Section IX: “Qualification Standard for Welding and Brazing Procedures, Welders, Brazers, and Welding and Brazing Operators” (2007 edition, July 1, 2007) (ASME BPVC, Section IX), IBR approved for §§ 192.225(a); 192.227(a); and Item II, Appendix B to Part 192.
(d) American Society for Testing and Materials (ASTM), 100 Barr Harbor Drive, PO Box C700, West Conshohocken, PA 19428–2959, phone: (610) 832–9585,
(1) ASTM A53/A53M–10, “Standard Specification for Pipe, Steel, Black and Hot-Dipped, Zinc-Coated, Welded and Seamless” (October 2, 2010) (ASTM A53/A53M), IBR approved for §§ 192.113; and Item II, Appendix B to Part 192.
(2) ASTM A106/A106M–10, “Standard Specification for Seamless Carbon Steel Pipe for High-Temperature Service” (April 1, 2010) (ASTM A106/A106M), IBR approved for §§ 192.113; and Item I, Appendix B to Part 192.
(3) ASTM A333/A333M–11, “Standard Specification for Seamless and Welded Steel Pipe for Low-Temperature Service” (April 01, 2011) (ASTM A333/A333M), IBR approved for §§ 192.113; and Item I, Appendix B to Part 192.
(4) ASTM A372/A372M–10 (reapproved 2008), “Standard Specification for Carbon and Alloy Steel Forgings for Thin-Walled Pressure Vessels” (October 1, 2010) (ASTM A372/A372M), IBR approved for § 192.177(b).
(5) ASTM A381–96 (reapproved 2005), “Standard Specification for Metal-Arc Welded Steel Pipe for Use with High-Pressure Transmission Systems” (October 1, 2005) (ASTM A381), IBR approved for §§ 192.113; and Item I, Appendix B to Part 192.
(6) ASTM A578/A578M–96 (re-approved 2001), “Standard Specification for Straight-Beam Ultrasonic Examination of Plain and Clad Steel Plates for Special Applications” (ASTM A578/A578M), IBR approved for § 192.112(c).
(7) ASTM A671/A671M–10, “Standard Specification for Electric-Fusion-Welded Steel Pipe for Atmospheric and Lower Temperatures” (April 1, 2010) (ASTM A671/A671M), IBR approved for §§ 192.113; and Item I, Appendix B to Part 192.
(8) ASTM A672–09, “Standard Specification for Electric-Fusion-Welded Steel Pipe for High-Pressure Service at Moderate Temperatures” (October 1, 2009). (ASTM A672), IBR approved for §§ 192.113 and Item I, Appendix B to Part 192.
(9) ASTM A691–09, “Standard Specification for Carbon and Alloy Steel Pipe, Electric-Fusion-Welded for High-Pressure Service at High Temperatures” (October 1, 2009) (ASTM A691), IBR approved for §§ 192.113 and Item I, Appendix B to Part 192.
(10) ASTM D638–03, “Standard Test Method for Tensile Properties of Plastics” (except for conditioning) (ASTM D638), IBR approved for § 192.283(a) and (b).
(11) ASTM D2513–87, “Standard Specification for Thermoplastic Gas Pressure Pipe, Tubing, and Fittings,” (for non-polyethylene plastic materials only) (ASTM D2513–87), IBR approved for § 192.63(a).
(12) ASTM D2513–99, “Standard Specification for Thermoplastic Gas Pressure Pipe, Tubing, and Fittings” (for non-polyethylene plastic materials only) (except section 4.2 pertaining to rework) (ASTM D 2513–99), IBR approved for §§ 192.59(d); 192.191(b); 192.281(b); 192.283(a) and Item 1, Appendix B to Part 192.
(13) ASTM D2513–09a, “Standard Specification for Polyethylene (PE) Gas Pressure Pipe, Tubing, and Fittings” (except section 4.2 pertaining to rework.) (ASTM D2513–09a), IBR approved for §§ 192.59(d); 192.63(a); 192.123(e), 192.191(b); 192.283(a); Item 1, Appendix B to Part 192.
(14) ASTM D2517–00, “Standard Specification for Reinforced Epoxy Resin Gas Pressure Pipe and Fittings” (ASTM D 2517), IBR approved for §§ 192.191(a); 192.281(d); 192.283(a) and Item I, Appendix B to Part 192.
(15) ASTM F1055–1998, “Standard Specification for Electrofusion Type Polyethylene Fittings for Outside Diameter Controller Polyethylene Pipe and Tubing” (ASTM F1055), IBR approved for § 192.283(a).
(e) Gas Technology Institute (GTI), formerly the Gas Research Institute (GRI)), 1700 S. Mount Prospect Road, Des Plaines, IL 60018, phone: 847–768–0500,
(1) GRI 02/0057 (2002) “Internal Corrosion Direct Assessment of Gas Transmission Pipelines Methodology” (GRI 02/0057), IBR approved for § 192.927(c).
(2) [Reserved]
(f) Manufacturers Standardization Society of the Valve and Fittings Industry, Inc. (MSS), 127 Park St. NE., Vienna, VA, 22180–4602, phone: 703–281–6613,
(1) MSS SP–44–2010, Standard Practice, “Steel Pipeline Flanges,” (2010
(2) [Reserved]
(g) NACE International (NACE), 1440 South Creek Drive, Houston, TX 77084–4906, phone: 281–228–6223 or 800–797–6223,
(1) NACE SP0502–2010, Standard Practice, “Pipeline External Corrosion Direct Assessment Methodology” (June 24, 2010) (NACE SP0502), IBR approved for §§ 192.923(b); 192.925(b); 192.931(d); 192.935(b) and 192.939(a).
(2) [Reserved]
(h) National Fire Protection Association (NFPA), 1 Batterymarch Park, Quincy, Massachusetts, 02169–7471, phone: 1 617 984–7275,
(1) NFPA–30 (Fire) (2012), “Flammable and Combustible Liquids Code,” includes Errata 1, Errata 2 (2012 edition, June 20, 2011) (NFPA–30), IBR approved for § 192.735(b).
(2) NFPA–58 (2004), “Liquefied Petroleum Gas Code (LP-Gas Code)” (NFPA–58), IBR approved for § 192.11(a), (b), and (c).
(3) NFPA–59 (2004), “Utility LP-Gas Plant Code” (NFPA–59), IBR approved for § 192.11(a), (b), and (c).
(4) NFPA–70 (2011), “National Electrical Code,” includes Errata 1, Errata 2 (2011 edition, approved September 24, 2010) (NFPA–70), IBR approved for §§ 192.163(c) and 192.189(c).
(i) Pipeline Research Council International, Inc. (PRCI), c/o Technical Toolboxes, 3801 Kirby Drive, Suite 520, P.O. Box 980550, Houston, TX 77098–0550, phone: 713–630–0505, toll free: 866–866–6766,
(1) Pipeline Research Committee Project, PR–3–805, “A Modified Criterion for Evaluating the Remaining Strength of Corroded Pipe,” (December 22, 1989). The R–STRENG program may be used for calculating remaining strength. (PRCI PR–3–805 (R–STRENG)), IBR approved for §§ 192.485(c), 192.933(a) and 192.933(d).
(2) [Reserved]
(j) Plastics Pipe Institute, Inc. (PPI), 105 Decker Court, Suite 825 Irving TX, 75062, phone: 469–499–1044,
(1) PPI TR–3/2008 HDB/HDS/PDB/SDB/MRS Policies (2008), “Policies and Procedures for Developing Hydrostatic Design Basis (HDB), Pressure Design Basis (PDB), Strength Design Basis (SDB), and Minimum Required Strength (MRS) Ratings for Thermoplastic Piping Materials or Pipe.” (May 2008), IBR approved for § 192.121.
(2) [Reserved]
(d) Rework and/or regrind material is not allowed in plastic pipe used under this part.
(c)
(a) Except for branch connections and assemblies of standard pipe and fittings joined by circumferential welds, the design pressure of each component fabricated by welding, whose strength cannot be determined, must be established in accordance with paragraph UG–101 of the ASME Boiler and Pressure Vessel Code (BPVC) (Section VIII, Division 1) (incorporated by reference,
(b) Each prefabricated unit that uses plate and longitudinal seams must be designed, constructed, and tested in accordance with section 1 of the ASME BPVC (Section VIII, Division 1 or Section VIII, Division 2) (incorporated by reference,
(d) Except for flat closures designed in accordance with the ASME BPVC (Section VIII, Division 1 or 2) flat closures and fish tails may not be used on pipe that either operates at 100 p.s.i. (689 kPa) gage or more, or is more than 3 inches (76 millimeters) nominal diameter.
(a) * * *
(1) * * *
(i) In the case of thermoplastic pipe, paragraph 6.6 (Sustained Pressure Test) or paragraph 6.7 (Minimum Hydrostatic Burst Test) of ASTM D2513 (except section 4.2 pertaining to rework material) (incorporated by reference,
(a)
(b)
(1) ASME/ANSI B31.8S (incorporated by reference,
(2) ASME/ANSI B31.8S (incorporated by reference,
(3) ASME/ANSI B31.8S, appendix A3, and § 192.929 if addressing stress corrosion cracking (SCC).
(a) * * *
(1)
(d) * * *
(1) * * *
(i) A calculation of the remaining strength of the pipe shows a predicted failure pressure less than or equal to 1.1 times the maximum allowable operating pressure at the location of the anomaly. Suitable remaining strength calculation methods include, ASME/ANSI B31G (incorporated by reference,
ANSI/API Specification 5L/ISO 3183—Steel pipe, “Specification for Line Pipe” (incorporated by reference,
ASTM A53/A53M—Steel pipe, “Standard Specification for Pipe, Steel Black and Hot-Dipped, Zinc-Coated, Welded and Seamless” (incorporated by reference,
ASTM A106/A106M—Steel pipe, “Standard Specification for Seamless Carbon Steel Pipe for High Temperature Service” (incorporated by reference,
ASTM A333/A333M—Steel pipe, “Standard Specification for Seamless and Welded Steel Pipe for Low Temperature Service” (incorporated by reference,
ASTM A381—Steel pipe, “Standard Specification for Metal-Arc-Welded Steel Pipe for Use with High-Pressure Transmission Systems” (incorporated by reference,
ASTM A671/A671M—Steel pipe, “Standard Specification for Electric-Fusion-Welded Pipe for Atmospheric and Lower Temperatures” (incorporated by reference,
ASTM A672—Steel pipe, “Standard Specification for Electric-Fusion-Welded Steel Pipe for High-Pressure Service at Moderate Temperatures” (incorporated by reference,
ASTM A691—Steel pipe, “Standard Specification for Carbon and Alloy Steel Pipe, Electric-Fusion-Welded for High Pressure Service at High Temperatures” (incorporated by reference,
ASTM D2513–87—Thermoplastic pipe and tubing, “Standard Specification for Thermoplastic Gas Pressure Pipe, Tubing, and Fittings” (incorporated by reference,
ASTM D2513–99—Non-polyethylene thermoplastic pipe and tubing, “Standard Specification for Thermoplastic Gas Pressure Pipe, Tubing, and Fittings” (except section 4.2 pertaining to rework material), (incorporated by reference,
ASTM D2513–09a—Polyethylene thermoplastic pipe and tubing, “Standard Specification for Polyethylene (PE) Gas Pressure Pipe, Tubing, and Fittings” (except section 4.2 pertaining to rework material) (incorporated by reference,
ASTM D2517—Thermosetting plastic pipe and tubing, “Standard Specification for Reinforced Epoxy Resin Gas Pressure Pipe and Fittings” (incorporated by reference,
49 U.S.C. 5103, 60102, 60103, 60104, 60108, 60109, 60110, 60113, 60118; and 49 CFR 1.53.
a. Section 193.2019 (a);
b. Section 193.2051;
c. Section 193.2057, introductory text;
f. Section 193.2301, introductory text;
g. Section 193.2303;
h. Section 193.2401;
i. Section 193.2521;
j. Section 193.2639 paragraph (a); and
k. Section 193.2801.
(a) This part prescribes standards, or portions thereof, incorporated by reference (IBR). The material incorporated by reference is treated as if it were published in full in the
(1)
(i) The Office of Pipeline Safety, Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590–0001. For information contact 1–202–366–202–4046 or go to:
(ii) (A) The National Archives and Records Administration (NARA), Office of the Federal Register (OFR), 800 North Capitol Street NW., Suite 700, Washington, DC 20001.
(B) For information on the availability of this material and how to make an appointment, contact NARA, by telephone 202–741–6030 or go to:
(iii) The respective standards-developing organizations listed in this section.
(2) For information concerning standards available free of charge for visual inspection, please see the links on PHMSA's Web site at:
(3)
(b) American Gas Association (AGA), 400 North Capitol Street NW., Washington, DC 20001, phone: 1–202–824–7000,
(1) “Purging Principles and Practices” (3rd edition, 2001), IBR approved for §§ 193.2513 (b) and (c); 193.2517 and 193.2615 (a).
(c) American Petroleum Institute (API), 1220 L Street NW., Washington, DC 20005, phone: 202–289–2250,
(1) API Standard 620 “Design and Construction of Large, Welded, Low-Pressure Storage Tanks” (11th edition February 2008, addendum 1, March 2009), and addendum 2 (2010) (API Std 620), IBR approved for §§ 193.2101(b) and 193.2321 (b).
(2) [Reserved]
(d) American Society of Civil Engineers (ASCE), 1801 Alexander Bell Drive, Reston, VA 20191, (800) 548–2723, (703) 295–6300 (International),
(1) ASCE/SEI 7–05 “Minimum Design Loads for Buildings and Other Structures” (2005 edition, includes supplement No. 1 and Errata) (ASCE/SEI 7–05), IBR approved for § 193.2067 (b).
(2) [Reserved]
(e) ASME International (ASME), Three Park Avenue, New York, NY
(1) ASME Boiler & Pressure Vessel Code, Section VIII, Division 1 “Rules for Construction of Pressure Vessels” (2007 edition, July 1, 2007) (ASME BPVC, Section VIII, Division 1), IBR approved for § 193.2321 (a).
(2) [Reserved]
(f) Gas Technology Institute (GTI), formerly the Gas Research Institute (GRI)), 1700 S. Mount Prospect Road, Des Plaines, IL 60018, phone: 847–768–0500,
(1) GRI–96/0396.5, “Evaluation of Mitigation Methods for Accidental LNG Releases, Volume 5: Using FEM3A for LNG Accident Consequence Analyses” (April 1997) (GRI–96/0396.5), IBR approved for § 193.2059 (a).
(2) GTI–04/0032 LNGFIRE3: A Thermal Radiation Model for LNG Fires (March 2004) (GTI–04/0032 LNGFIRE3), IBR approved for § 193.2057 (a).
(3) GTI–04/0049 (April 2004) “LNG Vapor Dispersion Prediction with the DEGADIS 2.1: Dense Gas Dispersion Model for LNG Vapor Dispersion” (GTI–04/0049), IBR approved for § 193.2059 (a).
(g) National Fire Protection Association (NFPA), 1 Batterymarch Park, Quincy, Massachusetts d02169–7471, phone: 1 617 984–7275,
(1) NFPA 59A, (2001) “Standard for the Production, Storage, and Handling of Liquefied Natural Gas (LNG)” (NFPA–59A–2001), IBR approved for §§ 193.2019; 193.2051; 193.2057; 193.2059; 193.2101 (a); 193.2301; 193.2303; 193.2401; 193.2521; 193.2639 and 193.2801.
(2) NFPA 59A, (2006) “Standard for the Production, Storage, and Handling of Liquefied Natural Gas (LNG)” (2006 edition, Approved August 18, 2005) (NFPA–59A–2006), IBR approved for §§ 193.2101 (b) and 193.2321 (b).
(a) The butt welds in metal shells of storage tanks with internal design pressure above 15 psig must be nondestructively examined in accordance with the ASME Boiler and Pressure Vessel Code (BPVC) (Section VIII, Division 1) (incorporated by reference,
(b) * * *
(1) Section 7.3.1.2 of NFPA–59A (2006), (incorporated by reference,
(2) Appendices Q and C of API Std 620, (incorporated by reference,
49 U.S.C. 5103, 60102, 60104, 60108, 60109, 60116, 60118 and 60137; and 49 CFR 1.53.
(a) This part prescribes standards, or portions thereof, incorporated by reference (IBR). The material incorporated by reference is treated as if it were published in full in the
(1)
(i) The Office of Pipeline Safety, Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue SE., Washington, DC, 20590–0001. For information contact 1-202–366–202–4046 or go to:
(ii) (A) The National Archives and Records Administration (NARA), Office of the Federal Register (OFR), 800 North Capitol Street NW., Suite 700, Washington, DC 20001.
(B) For information on the availability of this material and how to make an appointment, contact NARA, by telephone 202–741–6030 or go to:
(iii) The standards-developing organization listed in this section.
(2) For information concerning standards available free of charge for visual inspection, please see the links on PHMSA's Web site at:
(3)
(b) American Petroleum Institute (API), 1220 L Street NW., Washington, DC 20005, phone: 202–289–2250,
(1) API Publication 2026, “Safe Access/Egress Involving Floating Roofs of Storage Tanks in Petroleum Service” (2nd edition, April 1998, reaffirmed June 2006) (API Pub 2026), IBR approved for § 195.405 (b).
(2) API Recommended Practice 5L1 “Recommended Practice for Railroad Transportation of Line Pipe” (7th Edition, September 2009) (API RP 5L1), IBR approved for § 195.207 (a).
(3) API Recommended Practice 5LT, “Recommended Practice for Truck Transportation of Line Pipe” (March 12, 2012) (API RP 5LT), IBR approved for § 195.207 (c).
(4) API Recommended Practice 5LW, “Transportation of Line Pipe on Barges and Marine Vessels” (3rd edition, September 2009) (API RP 5LW), IBR approved for § 195.207 (b).
(5) ANSI/API Recommended Practice 651, “Cathodic Protection of Aboveground Petroleum Storage Tanks” (3rd edition, January 2007) (ANSI/API RP 651), IBR approved for §§ 195.565 and 195.573 (d).
(6) ANSI/API Recommended Practice 652, “Linings of Aboveground Petroleum Storage Tank Bottoms” (3rd edition, October 2005) (API RP 652), IBR approved for § 195.579 (d).
(7) API Recommended Practice 1130, “Computational Pipeline Monitoring for Liquids: Pipeline Segment” (1st edition, September 2007) (API RP 1130), IBR approved for §§ 195.134 and 195.444.
(8) API Recommended Practice 1162, “Public Awareness Programs for Pipeline Operators” (1st edition, December 2003) (API RP 1162), IBR approved for § 195.440 (a), (b) and (c).
(9) API Recommended Practice 1165 “Recommended Practice for Pipeline SCADA Displays” (First edition (January 2007)) (API RP 1165), IBR approved for § 195.446 (c).
(10) API Recommended Practice 1168 “Pipeline Control Room Management” First Edition (September 2008) (API RP 1168), IBR approved for § 195.446 (c) and (f).
(11) API Recommended Practice 2003, “Protection against Ignitions Arising out of Static, Lightning, and Stray Currents” (7th edition, January 2008) (API RP 2003), IBR approved for § 195.405.
(12) API Recommended Practice 2350, “Overfill Protection for Storage Tanks in Petroleum Facilities'” (3rd edition, January 2005) (API RP 2350), IBR approved for § 195.428 (c).
(13) ANSI/API Specification 5L/ISO 3183 “Specification for Line Pipe” ANSI/API Specification 5L/ISO 3183 “Specification for Line Pipe” (45th edition, 12–1–2012) (ANSI/API Spec 5L), IBR approved for § 195.106.
(14) ANSI/API Specification 6D, “Specification for Pipeline Valves” (23rd edition, April 2008, effective October 1, 2008) and errata 3 (Includes Errata 1, 2, 3, 4, 5, and 6 (2011) and Addenda 1 and 2 (2011)) (ANSI/API Spec 6D), IBR approved for § 195.116.
(15) API Specification 12F, “Specification for Shop Welded Tanks for Storage of Production Liquids” (12th edition, October 2008, including errata 2008) (API Spec 12F), IBR approved for §§ 195.132; 195.205; 195.264; 195.307; 195.565; and 195.579.
(16) API Standard 510, “Pressure Vessel Inspection Code: In-Service Inspection, Rating, Repair, and Alteration” (9th edition, June 2006) (API Std 510), IBR approved for §§ 195.205 and 195.432.
(17) API Standard 620, “Design and Construction of Large, Welded, Low-Pressure Storage Tanks” (11th edition February 2008, addendum 1, March 2009), and includes addendum 2 (2010) (API Std 620), IBR approved for §§ 195.132; 195.205; 195.264; and 195.307, 195.565, and 195.620.
(18) API Standard 650, “Welded Steel Tanks for Oil Storage” (11th edition, June 2007), includes addendum 1 (November 2008), addendum 2 (November 2009), addendum 3 (August 2011), and errata (February 2012) (API Std 650), IBR approved for §§ 195.132; 195.205; 195.264; 195.307; 195.565; and 195.579.
(19) API Standard 653, “Tank Inspection, Repair, Alteration, and Reconstruction” (3rd edition, December 2001, includes addendum 1 (September 2003), addendum 2 (November 2005), addendum 3 (February 2008), and errata (April 2008)) (except—section 6.4.3) (API Std 653), IBR approved for §§ 195.205 (b); 195.307 (d) and 195.432 (b).
(20) API Standard 1104, “Welding of Pipelines and Related Facilities” (20th edition, October 2005, errata/addendum (July 2007) and, errata 2 (2008) (API Std 1104), IBR approved for §§ 195.222 (a) and 195.228 (b).
(21) API Standard 2000, “Venting Atmospheric and Low-Pressure Storage Tanks” (6th edition, November 1, 2009) (API Std 2000), IBR approved for § 195.264 (e).
(22) API Standard 2510, “Design and Construction of LPG Installations” (8th edition, 2001) (API Std 2510), IBR approved for §§ 195.132 (b); 195.205 (b); 195.264 (b) & (e); 195.307 (e); 195.428 (c) and 195.432 (c).
(c) ASME International (ASME), Two Park Avenue, New York, NY 10016–5990, 800–843–2763 (U.S/Canada),
(1) ASME/ANSI B16.9–2007, “Factory-Made Wrought Buttwelding Fittings” (December 7, 2007) (ASME/ANSI B16.9), IBR approved for § 195.118 (a).
(2) ASME/ANSI B31G–1991 (Reaffirmed; 2004), “Manual for Determining the Remaining Strength of Corroded Pipelines” (ASME/ANSI B31G), IBR approved for §§ 195.452 (h) and 195.587.
(3) ASME/ANSI B31.4–2006, “Pipeline Transportation Systems for Liquid Hydrocarbons and Other Liquids” (October 20, 2006) (ASME/ANSI B31.4), IBR approved for §§ 195.110.
(4) ASME/ANSI B31.8–2007, “Gas Transmission and Distribution Piping Systems” (November 30, 2007) (ASME/ANSI B31.8), IBR approved for §§ 195.5 (a) and 195.406 (a).
(5) 2007 ASME Boiler & Pressure Vessel Code, Section VIII, Division 1 “Rules for Construction of Pressure Vessels” (2010 edition, July 1, 2007) (ASME BPVC, Section VIII, Division 1), IBR approved for §§ 195.124 and 195.307 (e).
(6) 2007 ASME Boiler & Pressure Vessel Code, Section VIII, Division 2 “Alternate Rules, Rules for Construction of Pressure Vessels” (2010 edition, July 1, 2007) (ASME BPVC, Section VIII, Division 2), IBR approved for § 195.307 (e).
(7) 2007 ASME Boiler & Pressure Vessel Code, Section IX: “Qualification Standard for Welding and Brazing Procedures, Welders, Brazers, and Welding and Brazing Operators” (2007 edition, July 1, 2007) (ASME BPVC, Section IX), IBR approved for § 195.307 (e).
(d) American Society for Testing and Materials (ASTM), 100 Barr Harbor Drive, PO Box C700, West Conshohocken, PA 119428–2959, phone: (610) 832–9585,
(1) ASTM A53/A53M–10, “Standard Specification for Pipe, Steel, Black and Hot-Dipped, Zinc-Coated, Welded and Seamless” (October 2, 2010) (ASTM A53/A53M), IBR approved for § 195.106.
(2) ASTM A106/A106M–10, “Standard Specification for Seamless Carbon Steel Pipe for High-Temperature Service” (April 1, 2010) (ASTM A106/A106M), IBR approved for § 195.106 (e).
(3) ASTM A333/A333M–11, “Standard Specification for Seamless
(4) ASTM A381–96 (reapproved 2005), “Standard Specification for Metal-Arc Welded Steel Pipe for Use with High-Pressure Transmission Systems” (October 1, 2005) (ASTM A381), IBR approved for § 195.106 (e).
(5) ASTM A671/A671M–10, “Standard Specification for Electric-Fusion-Welded Steel Pipe for Atmospheric and Lower Temperatures” (April 1, 2010) (ASTM A671/A671M), IBR approved for § 195.106 (e).
(6) ASTM A672–09, “Standard Specification for Electric-Fusion-Welded Steel Pipe for High-Pressure Service at Moderate Temperatures” (October 1, 2009) (ASTM A672), IBR approved for § 195.106 (e).
(7) ASTM A691–09, “Standard Specification for Carbon and Alloy Steel Pipe, Electric-Fusion-Welded for High-Pressure Service at High Temperatures” (October 1, 2009) (ASTM A691), IBR approved for § 195.106 (e).
(e) Manufacturers Standardization Society of the Valve and Fittings Industry, Inc. (MSS), 127 Park St. NE., Vienna, VA 22180–4602, phone: 703–281–6613,
(1) MSS SP–75–2008, “Specification for High Test Wrought Butt Welding Fittings” (MSS SP 75), IBR approved for § 195.118 (a).
(2) [Reserved]
(f) NACE International (NACE), 1440 South Creek Drive, Houston, TX 77084–4906, phone: 281–228–6223 or 800–797–6223,
(1) NACE SP0169–2007, Standard Practice, “Control of External Corrosion on Underground or Submerged Metallic Piping Systems” (reaffirmed March 15, 2007) (NACE SP0169), IBR approved for §§ 195.571 and 195.573 (a)(2).
(2) NACE SP0502–2010, Standard Practice, “Pipeline External Corrosion Direct Assessment Methodology” (June 24, 2010) (NACE SP0502), IBR approved for § 195.588 (b).
(g) National Fire Protection Association (NFPA), 1 Batterymarch Park, Quincy, Massachusetts 02169–7471, phone: 1 617 984–7275,
(1) NFPA–30 (Fire) (2012), “Flammable and Combustible Liquids Code,” includes Errata 1, Errata 2 (2012 edition, June 20, 2011) (NFPA–30), IBR approved for § 195.264 (b).
(2) [Reserved]
(h) Pipeline Research Council International, Inc. (PRCI), c/o Technical Toolboxes, 3801 Kirby Drive, Suite 520, P. O. Box 980550, Houston, TX 77098–0550, phone: 713–630–0505, toll free: 866–866–6766,
(1) Pipeline Research Committee, Project PR–3–805, “A Modified Criterion for Evaluating the Remaining Strength of Corroded Pipe,” (December 22, 1989). The RSTRENG program may be used for calculating remaining strength. (PRCI PR–3–805 (R–STRENG)), IBR approved for § 195.587.
(2) [Reserved]
(e)(1) The seam joint factor used in paragraph (a) of this section is determined in accordance with the following standards incorporated by reference (
(2) The seam joint factor for pipe which is not covered by this paragraph must be approved by the Administrator.
Each closure to be installed in a pipeline system must comply with the 2007 ASME Boiler and Pressure Vessel Code (BPVC) (Section VIII, Division 1) (incorporated by reference,
(b) After October 2, 2000, compliance with paragraph (a) of this section requires the following:
(1) For tanks designed for approximate atmospheric pressure, constructed of carbon and low alloy steel, welded or riveted, and non-refrigerated, and for tanks built to API Std 650 (incorporated by reference,
(2) For tanks built to API Spec 12F (incorporated by reference, see § 195.3) or API Std 620 (incorporated by reference,
(3) For high pressure tanks built to API Std 2510 (incorporated by reference,
(c) Truck. In a pipeline to be operated at a hoop stress of 20 percent or more of SMYS, an operator may not use pipe having an outer diameter to wall thickness ratio of 70 to 1, or more, that is transported by truck unless the transportation is performed in accordance with API RP 5LT (incorporated by reference,
(a) Each welder or welding operator must be qualified in accordance with section 6 or 12 of API Std 1104 (incorporated by reference,
(b) * * *
(2) Had one weld tested and found acceptable under section 9 or Appendix A of API Std 1104 (incorporated by reference,
(b) * * *
(1) For tanks built to API Spec 12F, API Std 620, and others (such as API Std 650 or its predecessor Standard 12C), the installation of impoundment must be in accordance with the following sections of NFPA–30 (incorporated by reference,
(2) For tanks built to API Std 2510 (incorporated by reference,
(e) * * *
(1) Normal/emergency relief venting installed on atmospheric pressure tanks built to API Spec 12F must be in accordance with section 4, and Appendices B and C, of API Spec 12F (incorporated by reference,
(2) Normal/emergency relief venting installed on atmospheric pressure tanks (such as those built to API Std 650 (or its predecessor Standard 12C) must be in accordance with API Std 2000 (incorporated by reference,
(3) Pressure-relieving and emergency vacuum-relieving devices installed on low pressure tanks built to API Std 620 must be in accordance with section 9 of API Std 620 (incorporated by reference,
(4) Pressure and vacuum-relieving devices installed on high pressure tanks built to API Std 2510 must be in accordance with sections 7 or 11 of API Std 2510 (incorporated by reference,
(a) For aboveground breakout tanks built into API Spec 12F (incorporated by reference,
(b) For aboveground breakout tanks built to API Std 620 (incorporated by reference,
(c) For aboveground breakout tanks built to API Std 650 (incorporated by reference,
(d) For aboveground atmospheric pressure breakout tanks constructed of carbon and low alloy steel, welded or riveted, and non-refrigerated, and tanks built to API Std 650 (incorporated by reference,
(e) For aboveground breakout tanks built to API Std 2510 (incorporated by reference,
(a) After October 2, 2000, protection provided against ignitions arising out of
(b) The hazards associated with access/egress onto floating roofs of in-service aboveground breakout tanks to perform inspection, service, maintenance or repair activities (other than specified general considerations, specified routine tasks or entering tanks removed from service for cleaning) are addressed in API Pub 2026 (incorporated by reference,
(c) Aboveground breakout tanks that are constructed or significantly altered according to API Std 2510 (incorporated by reference,
(b) Each operator must inspect the physical integrity of in-service atmospheric and low-pressure steel above-ground breakout tanks according to API Std 653 (except section 6.4.3) (incorporated by reference,
(c) Each operator must inspect the physical integrity of in-service steel aboveground breakout tanks built to API Std 2510 (incorporated by reference,
(h) * * *
(4) * * *
(i) * * *
(B) A calculation of the remaining strength of the pipe shows a predicted burst pressure less than the established maximum operating pressure at the location of the anomaly. Suitable remaining strength calculation methods include, but are not limited to, ASME/ANSI B31G (incorporated by reference,
(iii) * * *
(D) A calculation of the remaining strength of the pipe shows an operating pressure that is less than the current established maximum operating pressure at the location of the anomaly. Suitable remaining strength calculation methods include, but are not limited to, ASME/ANSI B31G or PRCI PR–3–805 (R–STRENG).
(l)
(1) An operator must maintain, for the useful life of the pipeline, records that demonstrate compliance with the requirements of this subpart. At a minimum, an operator must maintain the following records for review during an inspection:
After October 2, 2000, when you install cathodic protection under § 195.563(a) to protect the bottom of an aboveground breakout tank of more than 500 barrels (79.5m3) capacity built to API Spec 12F (incorporated by reference,
(d)
(d) Breakout tanks. After October 2, 2000, when you install a tank bottom lining in an aboveground breakout tank built to API Spec 12F (incorporated by reference,
Under § 195.585, you may use the procedure in ASME/ANSI B31G (incorporated by reference,
49 U.S.C. 5103, 60102, 60104, 60108, 60117, and 60118; and 49 CFR 1.53.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation.
Publication of preliminary theft data; Request for Comments; Correction.
The National Highway Traffic Safety Administration (NHTSA) published in the
Publication of these data fulfills NHTSA's statutory obligation to periodically obtain accurate and timely theft data, and publish the information for review and comment.
Comments must be submitted on or before October 15, 2013.
You may submit comments identified by Docket No. NHTSA–2012–0073 by any of the following methods:
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•
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Ms. Rosalind Proctor, Office of International Policy, Fuel Economy and Consumer Programs, NHTSA, 1200 New Jersey Avenue SE., Washington, DC 20590. Ms. Proctor's telephone number is (202) 366–4807. Her fax number is (202) 493–0073.
This publication revises the
NHTSA administers a program for reducing motor vehicle theft. The central feature of this program is the Federal Motor Vehicle Theft Prevention Standard, 49 CFR Part 541. The standard specifies performance requirements for inscribing or affixing vehicle identification numbers (VINs) onto certain major original equipment and replacement parts of high-theft lines of passenger motor vehicles.
The agency is required by 49 U.S.C. 33104(b)(4) to periodically obtain, from the most reliable source, accurate and timely theft data, and publish the data for review and comment. To fulfill the § 33104(b)(4) mandate, this document reports the preliminary theft data for CY 2011 the most recent calendar year for which data are available.
In calculating the 2011 theft rates, NHTSA followed the same procedures it has used since publication of the 1983/1984 theft rate data (50 FR 46669, November 12, 1985). The 2011 theft rate for each vehicle line was calculated by dividing the number of reported thefts of MY 2011 vehicles of that line stolen during calendar year 2011 by the total number of vehicles in that line manufactured for MY 2011, as reported to the Environmental Protection Agency (EPA). As in all previous reports, NHTSA's data were based on information provided to NHTSA by the National Crime Information Center (NCIC) of the Federal Bureau of Investigation. The NCIC is a government system that receives vehicle theft information from approximately 23,000 criminal justice agencies and other law enforcement authorities throughout the United States. The NCIC data also include reported thefts of self-insured and uninsured vehicles, not all of which are reported to other data sources.
The preliminary 2011 theft data show a significant decrease in the vehicle theft rate when compared to the theft rate experienced in CY/MY 2010 (For 2010 theft data, see 77 FR 58500, September 21, 2012). The preliminary
The agency believes that the theft rate reduction is a result of several factors, including vehicle parts marking; the increased use of standard antitheft devices and other advances in electronic technology (i.e., immobilizers) and theft prevention methods; increased and improved prosecution efforts by law enforcement organizations; and, increased public awareness which may have contributed to the overall reduction in vehicle thefts. The preliminary MY 2011 theft rate reduction is consistent with the general decreasing trend of theft rates over the past 19 years as indicated by Figure 1.
In Table I, NHTSA has tentatively ranked each of the MY 2011 vehicle lines in descending order of theft rate. Public comment is sought on the accuracy of the data, including the data for the production volumes of individual vehicle lines.
Comments must not exceed 15 pages in length (49 CFR part 553.21). Attachments may be appended to these submissions without regard to the 15 page limit. This limitation is intended to encourage commenters to detail their primary arguments in a concise fashion.
If a commenter wishes to submit certain information under a claim of confidentiality, three copies of the complete submission, including purportedly confidential business information, should be submitted to the Chief Counsel, NHTSA, at the street address given in the
All comments received before the close of business on the comment closing date indicated above for this document will be considered, and will be available for examination in the docket at the above address both before and after that date. To the extent possible, comments filed after the closing date will also be considered. Comments on this document will be available for inspection in the docket. NHTSA will continue to file relevant information as it becomes available for inspection in the docket after the closing date, and it is recommended that interested persons continue to examine the docket for new material.
Those persons desiring to be notified upon receipt of their comments in the rules docket should enclose a self-addressed, stamped postcard in the envelope with their comments. Upon receiving the comments, the docket supervisor will return the postcard by mail.
49 U.S.C. 33101, 33102 and 33104; delegation of authority at 49 CFR 1.50.
The Department of Agriculture will submit the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104–13 on or after the date of publication of this notice. Comments regarding (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Animal and Plant Health Inspection Service, USDA.
Notice of intent to prepare an environmental impact statement and proposed scope of study.
We are advising the public that the Animal and Plant Health Inspection Service plans to prepare an environmental impact statement to analyze the effects of a program to eradicate the Asian longhorned beetle from wherever it might occur in the United States. This notice identifies potential issues and alternatives that will be studied in the environmental impact statement and requests public comments to further delineate the scope of the alternatives and environmental impacts and issues.
We will consider all comments that we receive on or before September 16, 2013.
You may submit comments regarding the environmental impact statement by either of the following methods:
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•
Supporting documents and any comments we receive on this docket may be viewed at
For questions related to the Asian Longhorned Beetle Eradication Program, contact Dr. Robyn Rose, National Asian Longhorned Beetle Eradication Program Manager, PPQ, APHIS, 4700 River Road Unit 137, Riverdale, MD 20737; (301) 851–2283. For questions related to the environmental impact statement, contact Dr. Jim Warren, Environmental Protection Specialist, Environmental and Risk Analysis Services, PPD, APHIS, 4700 River Road Unit 149, Riverdale, MD 20737; (202) 316–3216.
The Asian longhorned beetle (
Areas where ALB has been found are quarantined in accordance with the regulations in 7 CFR 301.51–1 through 301.51–9. These regulations place restrictions on the movement of ALB host articles from the quarantined areas, thus helping to prevent the human-assisted spread of ALB. Within the quarantined areas, the Animal and Plant Health Inspection Service (APHIS) works to eradicate ALB, after which the quarantine can be removed.
To date, ALB has been eradicated from Chicago, IL; Hudson, Middlesex, and Union Counties, NJ; Islip, NY; and the boroughs of Manhattan and Staten Island in New York. The infested areas in Massachusetts and Ohio are active eradication areas, and APHIS is still working to determine the extent of those infestations.
Current efforts to eradicate infestations in the two locations listed above include cutting, chipping or burning, and disposing by mulching of infested trees and high-risk host trees (ALB host trees that are located within a half-mile radius of infested trees). High-risk host trees that are not cut are treated with either trunk injections or soil injections at the base of the tree using the insecticide imidacloprid.
Under the provisions of the National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321
We are requesting public comment to help us identify or confirm potential alternatives and environmental issues that should be examined in the EIS, as well as comments that identify other issues that should be examined in the EIS.
The EIS will be prepared in accordance with: (1) NEPA, (2) regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500–1508), (3) USDA regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA Implementing Procedures (7 CFR part 372).
We have identified five alternatives for further examination in the EIS:
We have identified the following potential environmental impacts or issues for further examination in the EIS:
• Effects on wildlife, including consideration of migratory bird species and changes in native wildlife habitat and populations.
○ Effects on federally listed threatened and endangered species.
• Effects on soil, air, and water quality.
• Effects on forests and trees in residential areas.
• Effects on the wood product industry and other economic impacts, including impacts on the firewood industry and on property values.
• Effects on human health and safety.
• Effects on cultural and historic resources.
We welcome comments on the proposed action, and on other alternatives and environmental impacts or issues that should be considered for further examination in the EIS.
All comments on this notice will be carefully considered in developing the final scope of the EIS. Upon completion of the draft EIS, a notice announcing its availability and an invitation to comment on it will be published in the
Animal and Plant Health Inspection Service, USDA.
Notice.
We are advising the public of our decision to allow the importation of oranges and tangerines from Egypt. Based on the findings of a pest list and commodity import evaluation document, which we made available to the public for review and comment through a previous notice, we have concluded that the application of one or more designated phytosanitary measures will be sufficient to mitigate the pest risk associated with the importation of oranges and tangerines
Mr. Tony Román, Regulatory Policy Specialist, APHIS, PPQ, 4700 River Road Unit 156, Riverdale, MD 20737; (301) 851–2242.
Under the regulations in “Subpart—Fruits and Vegetables” (7 CFR 319.56–1 through 319.56–59), the Animal and Plant Health Inspection Service (APHIS) prohibits or restricts the importation of fruits and vegetables into the United States from certain parts of the world to prevent the introduction and dissemination of plant pests.
Section 319.56–4 contains a performance-based process for approving the importation of commodities that, based on the findings of a pest risk analysis, can be safely imported subject to one or more of the designated phytosanitary measures listed in paragraph (b) of that section.
In accordance with that process, we published a notice in the
Because of the time that had passed since importation of oranges from Egypt was suspended, APHIS prepared a pest list to identify pests of quarantine significance that could follow the pathway of importation of oranges and tangerines from Egypt. Based on the pest list, we then completed a CIED to identify phytosanitary measures that could be applied to mitigate the risks of introducing or disseminating the identified pests via the importation of oranges and tangerines from Egypt. We concluded that fresh oranges and tangerines can safely be imported into the United States from Egypt using one or more of the five designated phytosanitary measures listed in § 319.56–4(b). These measures are:
• The oranges and tangerines must be treated in accordance with 7 CFR part 305 for
• The oranges and tangerines must be accompanied by a phytosanitary certificate issued by the national plant protection organization of Egypt stating that the consignment has begun or has undergone treatment for
The phytosanitary treatments regulations contained in part 305 of 7 CFR chapter III set out standards for treatments required in parts 301, 318, and 319 of 7 CFR chapter III for fruits, vegetables, and other articles.
In § 305.2, paragraph (b) states that approved treatment schedules are set out in the Plant Protection and Quarantine (PPQ) Treatment Manual.
The PPQ Treatment Manual does not currently provide a treatment schedule for
In addition to
We solicited comments on the notice, pest list, CIED, and TED for 60 days ending June 17, 2013. We received one comment by that date from a private citizen. The commenter agreed that cold treatment is an effective mitigation measure for peach fruit fly; however, the commenter expressed concern that administering treatment at the port of entry could be too late in the shipping process to avoid the spread of peach fruit flies to other fruits, further stating that any larvae in the fruit at the time of exportation could fully develop into an adult and migrate to other fruits while en route to the United States. The commenter recommended that all cold treatments be conducted prior to exportation from Egypt to prevent the spread of fruit flies during shipment.
We understand the commenter's concerns; however, the fruit is shipped in refrigerated containers, which keeps the larvae from developing further. In addition, proper containment methods described in the general cold treatment requirements in § 305.6 are also required to prevent fruit flies from spreading during shipment. Specifically, paragraphs (d)(3) and (d)(6) of that section require fruit that may be cold treated to be safeguarded to prevent cross-contamination or mixing with other infested fruit. Furthermore, only the same type of fruit in the same type of packaging may be treated together in a container and a numbered seal must be placed on the doors of the loaded container which can only be removed at the port of destination by an official authorized by APHIS. These safeguards have been used for many years during the treatment of a wide variety of commodities for fruit flies, and we have found them to be effective.
Therefore, in accordance with § 305.3, we are announcing the Administrator's decision to add the treatment described in the TED as it is an effective measure for neutralizing peach fruit fly and Medfly in oranges and tangerines. Furthermore, oranges and tangerines from Egypt may be imported into the United States subject to the requirements specified in the CIED.
The new treatment will be listed in the PPQ Treatment Manual, which is available at the Web address and mailing address in footnote 2 of this document.
7 U.S.C. 450, 7701–7772, and 7781–7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.
Forest Service, USDA.
Notice of meetings.
The Humboldt Resource Advisory Committee (RAC) will meet in Eureka, California on the dates listed below. The Committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Act) (Pub. L. 112–141) and operates in compliance with the Federal Advisory Committee Act (FACA) (Pub. L. 92–463). The purpose of the Committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with the Title II of the Act. The meetings are open to the public. The purpose of the meetings are to review prior year project's progress and to review and recommend project proposals.
The meetings will be held during the month of September. All meetings begin at 5:00 p.m. (PST). Exact meeting dates are as follow:
1. September 23, 2013.
2. September 25, 2013.
3. September 30, 2013.
All Resource Advisory Committee meetings are subject to change or cancellation. Prior to attending each meeting, contact: Lynn Wright, RAC Committee Coordinator, Six Rivers National Forest, 707–441–3562,
The meetings will be held at the Six Rivers National Forest Office, 1330 Bayshore Way, Eureka, California.
Written comments may be submitted as described under Supplementary Information listed below. All comments, including names and addresses when provided are placed in the record and are available for public inspection and copying. The public may inspect comments received at Six Rivers National Forest Supervisor's Office, 1330 Bayshore Way, Eureka, CA. Please call ahead to 707–442–1721 to facilitate entry into the building to view comments.
Lynn Wright, RAC Committee Coordinator, 707–441–3562;
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
The following business will be conducted: Review prior year project's progress and to review and recommend project proposals. Additonal information on the Humboldt Resource Advisory Committee and meeting agenda can be found by contacting the RAC Committee Coordinator listed above. Anyone who would like to bring related matters to the attention of the Committee may file written statements with the Committee staff before or after the meeting. The agenda will include time for people to make oral statements of 3 minutes or less. Individuals wishing to make an oral statement should request in writing to be scheduled on the agenda 5 days prior to the meeting. Written comments and requests for time to present oral comments must be sent to Lynn Wright, RAC Committee Coordinator, 1330 Bayshore Way, Eureka, CA 95501; Email:
A summary of the meeting will be posted at
If you are a person requiring resonable accomodation, please make requests in advance for sign language interpreting, assistive listening devices or other reasonable accomodation for access to the facility or procedings by contacting the person listed under For Further Information Contact. All reasonable accommodation requests are managed on a case by case basis.
Forest Service, USDA.
Notice of meetings.
The Del Norte County Resource Advisory Committee (RAC) will meet in Crescent City, California on the dates listed below. The Committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Act) (Pub. L. 112–141) and operates in compliance with the Federal Advisory Committee Act (FACA) (Pub. L. 92–463). The purpose of the Committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with the Title II of the Act. The meetings are open to the public. The purpose of the meetings are to review prior year project's progress and to review and recommend project proposals.
The meetings will be held during the month of September beginning at 6:00 p.m. (PST). Exact meeting dates are as follow:
1. September 9, 2013
2. September 10, 2013
3. September 11, 2013
All Resource Advisory Committee meetings are subject to change or cancellation. Prior to attending each meeting, contact: Lynn Wright, RAC Committee Coordinator, Six Rivers National Forest, 707–441–3562,
The meetings will be held at the Del Norte County Unified School District, Redwood Room, 301 West Washington Boulevard, Crescent City, California.
Written comments may be submitted as described under Supplementary Information. All comments, including names and addresses when provided are placed in the record and are available for public inspection and copying. The public may inspect comments received at Six Rivers National Forest Supervisor's Office, 1330 Bayshore Way, Eureka, CA. Please call ahead to 707–442–1721 to facilitate entry into the building to view comments.
Lynn Wright, RAC Committee Coordinator, 707–441–3562;
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
The following business will be conducted: Review prior year project's progress and to review and recommend project proposals. Additonal information on the Del Norte County Resource Advisory Committee and meeting agenda can be found by contacting the RAC Committee Coordinator listed above. Anyone who would like to bring related matters to the attention of the Committee may file written statements with the Committee staff before or after the meeting The agenda will include time for people to make oral statements of 3 minutes or less. Individuals wishing to make an
A summary of the meeting will be posted at
If you are a person requiring resonable accomodation, please make requests in advance for sign language interpreting, assistive listening devices or other reasonable accomodation for access to the facility or procedings by contacting the person listed under For Further Information Contact. All reasonable accommodation requests are managed on a case by case basis.
Rural Utilities Service, USDA.
Notice of availability of a Finding of No Significant Impact.
Notice is hereby given that the U.S. Department of Agriculture, Rural Utilities Service (RUS) has made a finding of no significant impact (FONSI) for implementing its new Energy Efficiency and Conservation Loan Program. The FONSI decision document is based on impact analysis documented in a programmatic environmental assessment of the new program that was issued for 30-day public comment beginning February 26, 2013.
Deirdre M. Remley, Environmental Protection Specialist, RUS, Water and Environmental Programs, Engineering and Environmental Staff, 1400 Independence Avenue SW., Stop 1571, Washington, DC 20250–1571, Telephone: (202) 720–9640 or email:
On May 22, 2008, the U.S. Congress enacted the Food, Conservation, and Energy Act of 2008 (2008 Farm Bill) as Public Law 110–234. The 2008 Farm Bill amended Section 12 to authorize energy audits and energy efficiency measures and devices to reduce demand on electric systems. Section 6101 of the 2008 Farm Bill amended Sections 2(a) and 4 of the Rural Electrification Act (RE Act) by inserting “efficiency and” before “conservation” each place it appears. Under the authority of the “efficiency” provisions added to the RE Act by the 2008 Farm Bill, RUS proposes to amend 7 CFR part 1710 by adding a new subpart H entitled “Energy Efficiency and Conservation Loan Program,” which expands upon policies and procedures specific to loans for a new Energy Efficiency and Conservation Loan program. The program would provide loans to eligible rural utility providers (Primary Recipients) who would act as intermediaries to make Energy Efficiency (EE) loans to consumers (Ultimate Recipients) in the Primary Recipients' service territories for EE improvements at the Ultimate Recipients' premises.
This program is funded through existing authorizations and appropriations. RUS expects that $250 million per year will be dedicated to the EE program. On July 26, 2012, RUS published a proposed rulemaking in the
Certain financing actions taken by RUS are Federal actions subject to compliance with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.), the Council on Environmental Quality (CEQ) regulations implementing the procedural provisions of NEPA (40 CFR parts 1500–1508), and RUS “Environmental Policies and Procedures” (7 CFR part 1794). The Programmatic Environmental Assessment (PEA) considered two Federal actions under the new EE program: (1) Loans awarded by RUS to Primary Recipients, and (2) Loans and other EE activities that the Primary Recipient executes for the benefit of Ultimate Recipients.
Based on its analysis in the PEA for the EE program, RUS has concluded that agency actions implementing the new program would have no significant impact to the quality of the human environment. Therefore, RUS will not prepare an environmental impact statement for its rulemaking adding subpart H to 7 CFR part 1710 nor its actions related to implementing the EE program. The FONSI will be available on RUS's Web site at
Rural Utilities Service, USDA.
Notice of Intent To Prepare a Supplemental Draft Environmental Impact Statement.
The Rural Utilities Service (RUS), an agency within the U.S. Department of Agriculture (USDA), intends to prepare a supplemental draft environmental impact statement (SDEIS) for Basin Electric Power Cooperative's (Basin Electric) proposed Antelope Valley Station (AVS) to Neset 345-kV Transmission Project (Project) in North Dakota. RUS is issuing this Notice of Intent (NOI) to inform the public and interested parties about a change in the proposed Project and invite the public to comment on the scope, proposed action, and other issues to be addressed in the SDEIS.
RUS made the decision to prepare an SDEIS for the AVS Project to evaluate significant project changes. These changes are due to an increase in the electric load forecast for western North Dakota which is changing the scope of the project. To accommodate this change, the SDEIS will evaluate a new alternative for the transmission line.
The SDEIS will address the construction, operation, and maintenance of Basin Electric's proposed Project. The Project includes construction, operation and maintenance of approximately 275
Portions of Basin Electric's proposed Project may affect floodplains and wetlands. This NOI also serves as a notice of proposed floodplain or wetland action. RUS will hold public hearing meetings to share information and receive comments on the SDEIS.
For information on the proposed Project, the SDEIS process, and RUS financing, contact Mr. Dennis Rankin, Engineering and Environmental Staff, Rural Utilities Service, 1400 Independence Avenue SW., Stop 1571, Washington, DC 20250–1571,
RUS is authorized to make loans and loan guarantees that finance the construction of electric distribution, transmission, and generation facilities, including system improvements and replacements required to furnish and improve electric service in rural areas, as well as demand side management, energy conservation programs, and on-grid and off-grid renewable energy systems. Based on an interconnection with the Western Area Power Administration's (Western) transmission system, Western has in accordance with 40 CFR 1501.6, requested to serve as a cooperating agency for the environmental review of the proposed Project.
Basin Electric is a regional wholesale electric generation and transmission cooperative owned and controlled by its member cooperatives. Basin Electric serves approximately 2.5 million customers covering 430,000 square miles in portions of nine states, including Colorado, Iowa, Minnesota, Montana, Nebraska, New Mexico, North Dakota, South Dakota, and Wyoming.
To resolve these issues, Basin Electric is proposing to construct, own and operate a new 345-kV transmission line and associated supporting infrastructure. The entire Project will consist of constructing approximately 275 miles of new single circuit 345-kV (approximately 85 miles more than the project identified in the Draft EIS), 230-kV and double circuit 345/115-kV transmission lines, the construction of 5 new substations, modifications to 4 existing substations, maintenance access roads, temporary construction roads, river crossings, temporary construction staging sites, and other facilities. The Project would connect to the Integrated System at several locations, including Western's Williston Substation. The proposed Project would be located in portions of Dunn, McKenzie, Mercer, Mountrail, and Williams counties in western North Dakota.
Basin Electric has requested financial assistance for the proposed Project from RUS. Completing the EIS is one of RUS's requirements in processing Basin Electric's application, along with other technical and financial considerations.
In accordance with 40 CFR 1501.5(b) on the Council of Environmental Quality's Regulation for Implementing the Procedural Provisions of the National Environmental Policy Act, RUS will serve as the lead agency in the preparation of the EIS.
The proposed Project is subject to the jurisdiction of the North Dakota Public Service Commission (NDPSC), which has regulatory authority for siting electrical transmission facilities within the State. Basin Electric will submit applications for NDPSC Transmission Corridor and Route Permits. The NDPSC Permits would authorize Basin Electric to construct the proposed Project under North Dakota rules and regulations.
RUS intends to prepare a SDEIS and Final EIS to analyze the impacts of its respective federal actions and the proposed Project in accordance with the National Environmental Policy Act (NEPA), as amended, Council on Environmental Quality (CEQ) Regulation for Implementing the Procedural Provisions of the NEPA (40 CFR parts 1500–1508), DOE NEPA Implementing Procedures (10 CFR part 1021), and RUS Environmental Policies and Procedures (7 CFR part 1794). RUS has already produced a Draft EIS which was released to the public on December 7, 2012 and can be found on the World Wide Web at
Because the proposed Project may involve action in floodplains or wetlands, this NOI also serves as a notice of proposed floodplain or wetland action. The SDEIS will include a floodplain/wetland assessment and, if required, a floodplain/wetland statement of findings will be issued with the Final EIS.
RUS will hold open-house public hearing meetings once the SDEIS is published. The times and locations of these meetings will be well-advertised in local media outlets a minimum of 15 days prior to the time of the meetings. Attendees will be welcome to come and go at their convenience and provide written or oral comments on the Project. In addition, attendees may provide written comments by letter, fax, email.
Import Administration, International Trade Administration, Department of Commerce.
In response to requests from Aqualon Company, a division of Hercules Inc., (Petitioner) and respondents CP Kelco Oy and CP Kelco U.S., Inc. (collectively, CP Kelco), the Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on purified carboxymethylcellulose (CMC) from Finland. The period of review (POR) is July 1, 2011, through June 30, 2012.
We preliminarily find that CP Kelco made sales at prices below normal value (NV) during the POR. If these preliminary results are adopted in our final results of this review, we will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties based on differences between the export price (EP) or constructed export price (CEP) and NV. We invite interested parties to comment on these preliminary results.
Tyler Weinhold or Robert James, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–1121 or (202) 482–0649, respectively.
The merchandise covered by the order is all purified carboxymethylcellulose (CMC), sometimes also referred to as purified sodium CMC, polyanionic cellulose, or cellulose gum, which is a white to off-white, non-toxic, odorless, biodegradable powder, comprising sodium CMC that has been refined and purified to a minimum assay of 90 percent. The merchandise subject to the order is classified in the Harmonized Tariff Schedule of the United States at subheading 3912.31.00. For a full description of the scope of the order,
The Department has conducted this review in accordance with section 751(a)(2) of the Tariff Act of 1930, as amended (the Act). EP is calculated in accordance with section 772 of the Act. NV is calculated in accordance with section 773 of the Act. In accordance with section 773(b) of the Act, we disregarded certain of CP Kelco's sales in the home market that were made at below-cost prices. For a full description of the methodology underlying our conclusions,
As a result of this review, we preliminarily determine the following dumping margin for the period July 1, 2011, through June 30, 2012.
The Department intends to disclose to interested parties the calculations performed in connection with these preliminary results within five days of the date of publication of this notice.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, filed electronically via IA ACCESS. An electronically filed document must be received successfully in its entirety by the Departments electronic records system, IA ACCESS, by 5:00 p.m. Eastern Standard Time within 30 days after the date of publication of this notice.
Requests should contain: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of issues to be discussed. Issues raised in the hearing will be limited to those raised in the respective case briefs. If a request for a hearing is made, parties will be notified of the date and time for the hearing to be held at the U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230.
The Department intends to issue the final results of this administrative review, including the results of its analysis of the issues raised in any written briefs, within 120 days after the date of publication of this notice, pursuant to section 751(a)(3)(A) of the Act.
Upon completion of the administrative review, the Department shall determine and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries. If CP Kelco's weighted-average dumping margin is not zero or
The Department clarified its “automatic assessment” regulation on May 6, 2003.
We intend to issue instructions to CBP 15 days after publication of the final results of this review.
The following deposit requirements will be effective upon publication of the notice of final results of administrative review for all shipments of CMC from Finland entered, or withdrawn from warehouse, for consumption on or after the date of publication as provided by section 751(a)(2) of the Act: (1) The cash deposit rate for CP Kelco Oy will be the rate established in the final results of this administrative review except if the rate is
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
In response to requests from respondent Terphane Ltda. and from DuPont Teijin Films, Mitsubishi Polyester Film, Inc., SKC, Inc., and Toray Plastics (America), Inc. (collectively, Petitioners), the Department of Commerce (the Department) initiated an administrative review of the antidumping duty order on polyethylene terephthalate film, sheet and strip (PET film) from Brazil. The administrative review covers Terphane Ltda. and Terphane Inc. (collectively, Terphane) for the period of review (POR) November 1, 2011, through October 31, 2012. As we currently have no evidence of any reviewable entries, shipments or sales of subject PET film by Terphane during the POR, we are issuing a preliminary no shipment determination.
Tyler Weinhold or Robert James, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington DC 20230; telephone: (202) 482–1121 or (202) 482–0649, respectively.
The products covered by this order are all gauges of raw, pre-treated, or primed PET film, whether extruded or co-extruded. PET film is classifiable under subheading 3920.62.00.90 of the Harmonized Tariff Schedule of the United States.
The Department has conducted this review in accordance with section 751(a)(2) of the Tariff Act of 1930, as amended (the Act). For a full description of the methodology underlying our conclusions,
Based on information Terphane submitted after the initiation of this administrative review and information collected from U.S. Customs and Border
The Department clarified its “automatic assessment” regulation on May 6, 2003. This clarification will apply to entries of subject merchandise during the POR produced by companies included in these final results of review for which these companies did not know that the merchandise was destined for the United States. In such instances, we will instruct CBP to liquidate un-reviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction. For a full discussion of this clarification,
Interested parties are invited to comment on these preliminary results and submit written arguments or case briefs within 30 days after the date of publication of this notice, unless otherwise notified by the Department.
Any interested party who wishes to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration within 30 days after the day of publication of this notice. A request should contain: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of issues to be discussed.
This notice serves as a preliminary reminder to the importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice is published in accordance with sections 751(a)(2)(B) and 777(i) of the Act and 19 CFR 351.214(f).
National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice; implementation of competitive research program.
NOAA announces the implementation, under the authority of the Resources and Ecosystem Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States Act (RESTORE Act) of 2012, of a new competitive science program to ensure the long-term sustainability of the Gulf of Mexico ecosystem and the communities that depend on it.
Russ Beard, Acting Program Director, Gulf Coast Ecosystem Restoration Science, Observation, Monitoring, and Technology Program, National Centers for Coastal Ocean Science, NOS.
The Resources and Ecosystem Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States Act (RESTORE Act) of 2012 authorized the establishment of a science, observation, monitoring and technology program on ecosystem restoration (RESTORE Act Science Program). Under Section 1604 of the RESTORE Act, the National Oceanic and Atmospheric Administration (NOAA) has been designated with responsibilities to establish the Program which is to be funded by 2.5% of the Gulf Coast Ecosystem Restoration Trust Fund plus twenty-five percent of the Trust Fund accrued interest.
The Program will be housed within the National Ocean Service's National Center for Coastal Ocean Science (NCCOS). NCCOS's experience running competitive science programs focused on pressing coastal and ocean issues, its experience working in the Gulf of Mexico, and its demonstrated ability to transfer research results to resource managers makes it a logical home for the Program. In addition, NOAA established an Executive Oversight Board consisting of senior executives representing each of the NOAA Line Offices, as well as a senior executive from the US Fish and Wildlife Service, to oversee continuing development and implementation of the program, provide strategic and programmatic guidance to a Program Support Team and eventual approval of the Science and Engagement Plans developed by the Support Team. The Program and the Executive Oversight Board will consult with the RESTORE Act Council, science advisory bodies that may be established pursuant to the Act, and other entities as deemed appropriate by NOAA or the Department of Commerce.
The RESTORE Act Science Program, including development of a Science Plan, will be guided by a suite of principles, including:
1. Requiring an ecosystem approach, considering the entirety and connectivity of the system;
2. Integrating and building on existing research, monitoring, and modeling efforts and plans (e.g., NRDA science, Gulf of Mexico States' Centers of Excellence, Gulf of Mexico Research Initiative, Gulf Coast Ecosystem Restoration Strategy and associated Science Needs Assessment);
3. Leveraging partnerships established among federal, state, academics, and NGOs, and develop new partnerships as appropriate;
4. Working within a management and policy framework developed with other entities in the Gulf, including USFWS, the Commission, and FMC; and
5. Designing a scalable and modular approach that adapts to funding availability, defines the unique roles and responsibilities of NOAA and avoids duplication with federal, state, academic, and NGO activities or NRDA science efforts.
Numerous documents have been developed in recent years that identify science needs in the Gulf of Mexico. Many of these documents were produced with extensive stakeholder input and in consultation with resource managers throughout the Gulf states. In development of the Goals for this program these documents were referenced to ensure high priority and recurring needs were captured. The DRAFT goals presented here were constructed to be responsive to Section 1604 of the Act and consistent with science needs identified previously in the region. The RESTORE Act Science Program will enable the collection and dissemination of scientific information to better inform decision making related to the following DRAFT goals:
1. Support Healthy, Diverse and Resilient Coastal Habitats
2. Support Healthy, Diverse and Sustainable Living Coastal and Marine Resources
3. Support Sustainably Managed Fisheries
4. Support Healthy and Well-managed Offshore Environments
5. Support Healthy, Sustainable, and Resilient Coastal Communities able to adapt to a changing environment.
Focusing the activities supported by this program will help ensure that the science, observation, monitoring, and technology advancement are coordinated, complement existing and future science efforts supported and implemented collaboratively, and address in an integrated and holistic manner the critical knowledge needed for Gulf of Mexico ecosystem restoration and management. The Focus areas do not define specific science needs, but rather encompass a suite of approaches of scientific study which, when taken together, will meet the desired outcome of improved holistic understanding of the Gulf of Mexico ecosystem. The focus areas are:
• Periodic “State of health” assessments for the Gulf, incorporating environmental, socio-economic, and human well-being information
• Integrated analysis and synthesis of data—Synthesis and analysis of existing and new data to understand interconnections, inform ecosystem perspective, and produce policy-relevant information
• Ecosystem processes, functioning and connectivity through integrative field/laboratory efforts to provide foundational information to support restoration planning and implementation and fisheries science
• Holistic approaches to observing and monitoring that encompass the next generation of observing and monitoring technologies, including those for fisheries and other natural resources, and data integration tools focused on the observing needs in the Gulf of Mexico
Section 1604 of the RESTORE Act specifies that NOAA shall coordinate with the US Fish and Wildlife Service, and with “other existing Federal and State science and technology programs in the States of Alabama, Florida, Louisiana, Mississippi, and Texas, as well as between the Centers of Excellence.” The Act also requires that NOAA consult with the Gulf of Mexico Fishery Management Council and Gulf States Marine Fisheries Commission “in carrying out the program”. Although such a provision is not included in the guidance to the Centers of Excellence under Section 1605, or in the criminal settlement agreements funding science programs for the National Academy of Sciences, these and other groups also have acknowledged the need for coordination.
The USFWS was an active partner during the program development process and they continue to engage fully on the Executive Oversight Board and on engagement and science planning working groups. During the program development, NOAA reached out to both the Regional Gulf of Mexico Fishery Management Council and the Gulf States Marine Fisheries Commission for their input and feedback to the process. NOAA will continue direct consultation with both the Commission and the Council as it develops and executes the program.
Additionally, several other groups have or are anticipated to receive funding as a result of the Deepwater Horizon oil spill. NOAA believes that it is imperative that all recipients of settlement funds derived from the spill money coordinate science activities to maximize the benefit to the environment and people of the Gulf of Mexico. As the RESTORE Act Science Program is implemented, NOAA will continue to actively engage partners, stakeholders and the public.
Development of the Program will be guided by application of the language of the Act to the science needs of the region as described by resource managers, researchers, residents, and other stakeholders. Given that the amount of funds to be made available and the science priorities of other programs established under the Act have yet to be defined, NOAA envisions that its science investments will evolve over time, adapting to changing information and knowledge. As noted previously, considerable work to identify science needs has been conducted in the region and provides an opportune starting point to frame an investment strategy. With additional engagement of partners in the region, NOAA will develop a science plan that seeks to achieve a holistic understanding of the Gulf of Mexico ecosystem that will contribute significantly to the science needed for the long-term sustainability of the Gulf of Mexico ecosystem, including its fisheries, and help inform restoration and management efforts.
NOAA is following a series of steps to implement the Program including:
• Conducting a review and assessment of science needs to support sustainability of the Gulf of Mexico ecosystem that have been determined previously;
• Developing a Science Plan framework that describes the program and lists a set of draft Goals for consideration to assist engagement with partners and stakeholders;
• Engaging partners to identify and prioritize ecosystem and management science requirements and gaps, including but not limited to coordination with other Trust Fund recipients;
• Identifying strategic early investments to assist the integration and synthesis of science priorities and to address known priority gaps;
• Conducting competitive processes for issuing awards for addressing the science needs;
• Continuing refinement of Science plan in coordination with partners through the life of the Program.
NOAA anticipates being able to issue a focused Federal Funding Opportunity (FFO)sometime in Fall/Winter, 2013, contingent upon the regulations governing the Trust Fund being finalized. The FFO will be targeted towards focused areas of investment derived from reviews of existing plans and engagement efforts with Gulf stakeholders being conducted this summer. This FFO will be announced through the
Additional information on the Program, the draft science framework, and engagement opportunities can be found on the Program Web site:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
Notice of 90-day petition finding.
We (NMFS) announce a 90-day finding on a petition to list the whale shark (
Copies of the petition and related materials are available upon request from the Director, Office of Protected Resources, 1315 East West Highway, Silver Spring, MD 20910, or online at:
Lisa Manning, Office of Protected Resources, 301–427–8466.
On December 21, 2012, we received a petition from the WildEarth Guardians to list the whale shark (
Section 4(b)(3)(A) of the ESA of 1973, as amended (U.S.C. 1531
Under the ESA, a listing determination may address a “species,” which is defined to also include subspecies and, for any vertebrate species, any distinct population segment (DPS) that interbreeds when mature (16 U.S.C. 1532(16)). A joint NOAA–U.S. Fish and Wildlife Service (USFWS) policy clarifies the agencies' interpretation of the phrase “distinct population segment” for the purposes of listing, delisting, and reclassifying a species under the ESA (“DPS Policy”; 61 FR 4722; February 7, 1996). A species, subspecies, or DPS is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, and “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively; 16 U.S.C. 1532(6) and (20)). Pursuant to the ESA and our implementing regulations, the determination of whether a species is threatened or endangered shall be based on any one or a combination of the following five section 4(a)(1) factors: The present or threatened destruction, modification, or curtailment of habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms; and any other natural or manmade factors affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)).
ESA-implementing regulations issued jointly by NMFS and USFWS (50 CFR 424.14(b)) define “substantial information” in the context of reviewing a petition to list, delist, or reclassify a species as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted. When evaluating whether substantial information is contained in a petition, we must consider whether the petition: (1) Clearly indicates the administrative measure recommended and gives the scientific and any common name of the species involved; (2) contains detailed narrative justification for the recommended measure, describing, based on available information, past and present numbers and distribution of the species involved and any threats faced by the species; (3) provides information regarding the status of the species over all or a significant portion of its range; and (4) is accompanied by the appropriate supporting documentation in the form of bibliographic references, reprints of pertinent publications, copies of reports or letters from authorities, and maps (50 CFR 424.14(b)(2)).
At the 90-day stage, we evaluate the petitioner's request based upon the information in the petition including its references, and the information readily available in our files. We do not conduct additional research, and we do not solicit information from parties outside the agency to help us in evaluating the petition. We will accept the petitioner's sources and characterizations of the information presented, if they appear to be based on accepted scientific principles, unless we have specific information in our files that indicates
To make a 90-day finding on a petition to list a species, we evaluate whether the petition presents substantial scientific or commercial information indicating the subject species may be either threatened or endangered, as defined by the ESA. First, we evaluate whether the information presented in the petition, along with the information readily available in our files, indicates that the petitioned entity constitutes a “species” eligible for listing under the ESA. Next, we evaluate whether the information indicates that the species at issue faces extinction risk that is cause for concern; this may be indicated in information expressly discussing the species' status and trends, or in information describing impacts and threats to the species. We evaluate any information on specific demographic factors pertinent to evaluating extinction risk for the species at issue (e.g., population abundance and trends, productivity, spatial structure, age structure, sex ratio, diversity, current and historical range, habitat integrity or fragmentation), and the potential contribution of identified demographic risks to extinction risk for the species. We then evaluate the potential links between these demographic risks and the causative impacts and threats identified in section 4(a)(1).
Information presented on impacts or threats should be specific to the species and should reasonably suggest that one or more of these factors may be operative threats that act or have acted on the species to the point that it may warrant protection under the ESA. Broad statements about generalized threats to the species, or identification of factors that could negatively impact a species, do not constitute substantial information that listing may be warranted. We look for information indicating that not only is the particular species exposed to a factor, but that the species may be responding in a negative fashion; then we assess the potential significance of that negative response.
Many petitions identify risk classifications made by non-governmental organizations, such as the International Union on the Conservation of Nature (IUCN), the American Fisheries Society, or NatureServe, as evidence of extinction risk for a species. Risk classifications by other organizations or made under other Federal or state statutes may be informative, but such classification alone may not provide the rationale for a positive 90-day finding under the ESA. For example, as explained by NatureServe, their assessments of a species' conservation status do “not constitute a recommendation by NatureServe for listing under the U.S. Endangered Species Act” because NatureServe assessments “have different criteria, evidence requirements, purposes and taxonomic coverage than government lists of endangered and threatened species, and therefore these two types of lists should not be expected to coincide” (
The whale shark is the world's largest fish and is one of three large species of filter-feeding sharks; the others being the basking shark (
Whale sharks feed on a variety of planktonic and nektonic organisms (e.g., copepods, sardines, anchovies, squid) and gametes. Stable-isotope analysis of whale shark muscle tissue suggests that as whale sharks grow, consumption of small fish and larger zooplankton of higher trophic levels increases (Borrell
Growth and reproduction are poorly described for this species. Basic characteristics, like gestation length, age at maturity, and frequency of reproduction, are not yet known. Growth rates calculated for captive whale sharks range from about 22 to 240 centimeters (cm) per year and vary with initial size and sex of the shark (Rowat and Brooks, 2012). Growth rate estimates for wild whale sharks are highly variable (e.g., 3–82 cm per year) and are confounded by large associated errors (Rowat and Brooks, 2012). Male whale sharks are thought to reach sexual maturity around 7–9 m TL, and females are thought to reach maturity at about 9 m TL or larger (Ramírez-Macías
Whale sharks are circumglobal and occur in all tropical and warm-temperate seas (Rowat and Brooks, 2012). Although generally occurring far offshore, whale sharks are also found in more shallow, coastal waters. Whale sharks are typically encountered near the surface and are characterized as epipelagic, but tagging studies reveal they can also dive to mesopelagic (200–1,000 m) and even bathypelagic depths (>1,000 m; Rowat and Brooks, 2012). Satellite telemetry data show that while some whale sharks may remain for relatively long periods of time within a given oceanic region, they are also highly migratory and capable of traveling 1,000s of kilometers (km) in several months (Sequeira
Specific habitat requirements of whale sharks are not yet fully understood; however, efforts have been made to elucidate what environmental features drive whale shark migrations and habitat preferences. Episodic aggregations of whale sharks in warm, coastal habitats have been mainly linked to food blooms, sea surface temperature, and currents (Coleman, 1997; Sequeira
The petition clearly indicates the administrative measure recommended and gives the scientific and any common name of the species involved. The petition also contains a narrative justification for the recommended measure and provides information on the species' taxonomy, geographic distribution and threats. Limited information is provided on past and present numbers, population status and trends. The petition is accompanied by internet articles, emails, Web sites, unpublished reports,
The petition requests that we list whale sharks throughout their range or list any DPSs that we may find to exist. To meet the definition of a DPS, a population must be both discrete from other populations of the species and significant to the species as a whole (61 FR 4722; February 7, 1996). The petition does not suggest possible delineations of particular populations or provide information to identify particular DPSs of whale sharks. The petition does note, however: “While it is entirely possible that there are subpopulations of whale sharks within each ocean or region, the relative scarcity of information on the species and its highly migratory nature make it difficult to know for sure whether such subpopulations exist.”
Information in our files indicates there is low genetic differentiation among geographic whale shark populations and a history of gene flow among populations. One study, using mitochondrial DNA, found that the most common haplotype is globally distributed and that differentiation among the three major ocean basins is low, especially relative to other globally distributed shark species (Castro
The petition states that population size is unknown for whale sharks but points to its “vulnerable” status on the IUCN (International Union for Conservation of Nature and Natural Resources) Red List and its Appendix II listing under CITES (the Convention on International Trade in Endangered Species of Wild Fauna and Flora) as evidence of an imperiled status. The petition asserts that a global decline of whale sharks has been caused mainly by commercial fishing—both direct harvest and bycatch—and points to the declines in whale shark landings that occurred during the late 1990's in Taiwan and the Philippines. Additional information on historical or present abundance or population trends is not presented in the petition.
Both Taiwan and the Philippines have closed their whale shark fisheries, as have multiple, other range states (Rowat and Brooks, 2012). The threat of commercial fishing is discussed in more detail below (see “Overutilization”).
According to Article II of CITES, species listed on Appendix II are those that are “not necessarily now threatened with extinction but may become so unless trade in specimens of such species is subject to strict regulation in order to avoid utilization incompatible with their survival.” The United States proposed to add whale sharks to Appendix II in 2000, and the species was ultimately added to that Appendix in 2003. Based on the CITES definitions and standards for listing species on Appendix II, neither the proposal to add whale sharks to Appendix II in 2000, nor their actual listing on Appendix II in 2003, are themselves inherent indications that whale sharks may now
The last IUCN assessment of whale sharks was completed in 2005, and since then several estimates of global and subpopulation abundance have been made. Whale sharks are being studied in various locations across the range, and identification of larger aggregations of animals in previously unknown locations suggests that global abundance may be higher than previously thought (Schmidt
However, in addition to the studies of individual whale shark aggregations, genetic data have been used to estimate the effective population size of whale sharks, meaning the number of individuals contributing offspring to the next generation. Using mitochondrial DNA from whale shark samples collected from aggregation areas across the entire species' range, Castro
In conclusion, while data are still limited with respect to population size and trends, we find the petition insufficient in terms of presenting substantial information on whale shark abundance, trends or status to indicate the petitioned action may be warranted.
The petition lists four main categories of threats to whale sharks: Habitat destruction, overutilization, inadequacy of existing regulatory mechanisms, and other natural and manmade factors. We discuss each of these below.
The petition lists several causes of current and threatened destruction of whale shark habitat: Human population growth, coastal pollution and “dead zones,” climate change, the Deepwater Horizon oil spill, and oil drilling in the Gulf of Mexico. The petition focuses on the Gulf of Mexico as “critical habitat” and states that the large dead zone in particular has “made a large swath of the Gulf [of Mexico] uninhabitable for the species.”
We agree with the petitioner that human population growth, coastal pollution, and climate change have various, negative, environmental consequences. Mechanisms presented in the petition to explain how these threats are impacting whale shark habitats include the increasing number and size of dead zones, loss of fish species, and coral bleaching. Both fish and coral species are affected to varying degrees around the world by the inter-related threats of human populations, pollution and climate change. Dead zones, or areas of very low levels of dissolved oxygen (2–3 parts per million), occur throughout the world, typically in estuaries and coastal areas, and cause mortality of organisms at or near the bottom. These threats and mechanisms, however, are general in nature, and neither the petition nor the available information provides clear linkages to whale sharks or whale shark habitat use. Whale sharks occur in oceanic and coastal waters, are highly mobile, and consume a variety of prey species. Neither the petition nor the information in our files provides evidence to indicate whale sharks are experiencing prey-limitations, or that dead zones and loss of coral reef habitat are limiting the distribution or range of this species. For the specific example of the Gulf of Mexico, sighting records and modeling efforts indicate that seasonal whale shark feeding areas exist in the northern Gulf of Mexico, primarily along the productive continental shelf edge; and that the spatial distribution of suitable whale shark habitat is dynamic, meaning it can vary from year to year (McKinney
The petition also discusses the very specific threat of the Deepwater Horizon oil spill and asserts it has degraded important whale shark habitat. The petition further states that the extensive oil drilling in this region and the “high probability” of future spills also pose a serious threat to this important whale shark habitat. The Deepwater Horizon spill was a catastrophic disaster, and such events are extremely problematic for endemic species in particular. While some whale sharks may have been exposed to oil and suffered some harm, possibly even through the ingestion of contaminated prey, it is unknown at this time whether and to what extent there are acute or chronic effects on whale sharks at a population level. A reference cited in the petition discusses observations made by scientists at Mote Marine Laboratory of elevated numbers of whale sharks in the more pristine waters near Florida's Gulf Coast during the summer months following the spill (Handwerk, 2010). These observations have led researchers to ask whether whale sharks that typically use the northern Gulf of Mexico were responding to the spill by avoiding the impacted area.
In summary, the petition, the references cited, and information in our files do not comprise substantial information indicating there is present or threatened destruction, modification, or curtailment of the whale shark's habitat or range such that listing may be warranted.
The petition states that commercial fishing is the greatest contributor to the overutilization of whale sharks and refers to landings information for fisheries in India, Taiwan and the Philippines. The petition also states that whales sharks are “heavily fished” in
The petition states that in addition to direct commercial harvest, incidental capture of whale sharks has resulted in population decline. No information about population declines as a result of bycatch, however, is provided. Information in our files about the response of fishermen to incidental capture of whale sharks in small-scale fisheries is mixed. Interviews conducted with local fishermen in China indicate that some fishermen consider them a nuisance species and will kill them to minimize damage to their nets, while others have assisted with transferring incidentally captured whale sharks to a rehabilitation center (Li
The petition highlights the tuna purse seine fishery and the practice of setting nets around whale sharks as a major source of whale shark mortality, injury and physiological stress. Based on purse seine fleet records of whale shark-associated sets, whale shark mortality rates can be high but also seem to vary widely (Rowat and Brooks, 2012; WCPFC, 2012). The highest mortality appears to have been occurring in the Pacific fleets (Rowat and Brooks, 2012), which consequently led to a ban on setting nets around whale sharks by the Western and Central Pacific Fisheries Commission (WCPFC) in 2012 (effective January, 2014). The WCPFC is developing guidelines for the safe release and handling of whale sharks and will be making these available to fishing vessels (WCPFC, 2011). The Parties to the Nauru Agreement, which collectively control one of the world's largest tuna purse seine fisheries, also agreed in 2010 that vessels shall not engage in fishing or related activity in order to catch tuna associated with whale sharks. Very recently, both the Indian Ocean Tuna Commission (IOTC) and the Inter-American Tropical Tuna Commission (IATTC) have also adopted whale shark provisions similar to the WCPFC's.
A third category of overutilization discussed in the petition is the dive-based ecotourism occurring in many of the predictable whale shark aggregation areas throughout the world. The petition specifically identifies diver interactions with whale sharks, such as close approaches, touching and riding, as forms of harassment that potentially disrupt normal life functions. We strongly advocate against touching, handling, or riding any marine wildlife. It remains highly speculative, however, whether any short or long term impacts to whale shark populations are occurring as result of tourist activities (Colman, 1997). Whale shark encounters with divers and tourists are also generally limited to those portions of the population and those times of year when whale sharks form seasonal aggregations in coastal areas. Thus, given their largely offshore existence, whale sharks have considerable refuge from interactions with ecotourism operations. In a preliminary investigation of whale shark tolerance of snorkelers, Rezzolla and Storai (2010) analyzed categories of whale shark behaviors and interactions with humans to produce an index of distress. In their study, which took place in the Gulf of Tadjoura, Djibouti, snorkeler presence was not found to result in any negative interference with natural whale shark behavior in a large majority of encounters; and, in only 12.7 percent of encounters (N = 55) did whale sharks demonstrate a defensive attitude (i.e., banking; Rezzolla and Storai, 2010). For whale sharks at Ningaloo Reef, where dive-based ecotourism has a relatively long history, recent modeling of the population provides no evidence of a population decline; nor is there any indication among tour operators and park managers that whale sharks at North Ningaloo are becoming harder to find (Holmberg
Taking a precautionary approach, however, some countries have instituted certain restrictions on ecotourism activities. In Belize, only six dive and snorkel boats are allowed within the area designated for whale shark viewing, and diving at dusk and night are prohibited except for permitted research purposes (Heyman
Given the information discussed above, we conclude that the petition, the references cited, and information in our files do not comprise substantial information indicating there is overutilization for commercial, recreational, scientific or educational purposes such that listing may be warranted.
The petition acknowledges that different national and international protections have been implemented to conserve whale sharks but states that these existing protections are either ineffective or lack enforcement. Citing the last IUCN assessment, the petition asserts that illegal fishing is continuing despite fishing bans. The IUCN assessment, however, only reports that “. . . illegal fishing [in the Philippines] and attempted export of meat still continues on a small scale, with shipments having been impounded by customs authorities (Anon, 2002b)” (see Norman, 2005). Additional information on the extent of illegal fishing in the Philippines or elsewhere is not provided.
The petition also asserts that the CITES Appendix II listing of whales sharks offers insufficient protection. The petition argues that because an Appendix II listing requires issuance of export permits only and not import permits, the CITES listing does not address domestic consumption nor the potential for landing whale sharks caught in one country at ports of another country. No information accompanies these statements to indicate whether or not such activities are occurring to any degree that would constitute a concern for whale sharks. The petition also argues that the CITES listing is insufficient because the requirements are `easily circumvented' and lack adequate enforcement. While we agree enforcement challenges probably exist, no specific information in the petition or in our files indicates that illegal foreign trade is posing a
CITES can be an effective tool to control, track and regulate trade, but it is not intended to replace fisheries and other forms of management. At least a dozen countries have developed national conservation measures for whale sharks, including bans on capture and killing of whale sharks in those countries where targeted whale shark fishing was once relatively intense (Rowat and Brooks, 2012). Whale sharks also receive protection under the Shark Conservation Act of 2010 (Pub. L. 111–348, January 4, 2011), which prohibits removing fins from sharks harvested seaward of state waters or possessing such unattached shark fins at port or at sea by any person subject to the jurisdiction of the United States; the High Seas Driftnet Moratorium Protection Act (16 U.S.C. 1826h–k), which, among other provisions, allows for the identification and certification of nations by the United States to address bycatch of protected species and shark catches; and through the fisheries management actions by the WCPFC, IOTC and IATTC. In additional several U.S. coastal states have adopted measures to conserve sharks. Whale sharks are listed on Appendix II of the Convention of Migratory Species of Wild Animals (“the Bonn Convention”), which provides an international forum for the development of a conservation and management plan (Rowat and Brooks, 2012). Whale sharks are also likely to benefit from the United Nations Food and Agriculture Organization's International Plan of Action for the Conservation and Management of Sharks, which calls for conservation and management of sharks to allow for long-term, sustainable use and has already stimulated the development of over a dozen national plans of action (Rowat and Brooks, 2012). Conservation efforts may be further bolstered by the increasing demand for live whale sharks in countries where ecotourism has replaced fishing as a source of revenue (Norman, 2005).
In conclusion, we find that the information presented in the petition and available in our files does not comprise substantial information indicating inadequacies of existing regulatory mechanisms such that listing may be warranted.
The petition lists the whale shark's susceptibility to fishing and natural history strategy as additional threats to whale sharks. Several biological characteristics of whale sharks—including large body size, long life span, and late maturation—do suggest that this species cannot sustain high levels of exploitation. This statement is supported by the reported declines in landings in the now closed whale shark fisheries in Taiwan, India and the Philippines following the increase in popularity and price of whale shark meat in the 1990's (Compagno, 2002; Hsu
After reviewing the information contained in the petition, as well as information readily available in our files, we conclude the petition does not present substantial scientific or commercial information indicating the petitioned action may be warranted.
A complete list of references is available upon request to the Office of Protected Resources (see
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
National Ocean Service, National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
Notice of Membership Solicitation for Hydrographic Services Review Panel.
This notice responds to the Hydrographic Service Improvements Act Amendments of 2002, Public Law 107–372, which requires the Administrator of the National Oceanic and Atmospheric Administration (NOAA), to solicit nominations for membership on the Hydrographic Services Review Panel (HSRP). The HSRP, a Federal advisory committee, advises the Administrator on matters related to the responsibilities and authorities set forth in section 303 of the Hydrographic Services Improvement Act (HSIA) of 1998 (as amended) and such other appropriate matters as the Administrator refers to the Panel for review and advice. Those responsibilities and authorities include, but are not limited to: Acquiring and disseminating hydrographic data and providing hydrographic services, as those terms are defined in the Act; promulgating standards for hydrographic data and services; ensuring comprehensive geographic coverage of hydrographic services; and testing, developing, and operating vessels, equipment, and technologies necessary to ensure safe navigation and maintain operational expertise in hydrographic data acquisition and hydrographic services.
The Act states that “voting members of the Panel shall be individuals who, by reason of knowledge, experience, or training, are especially qualified in one or more of the disciplines and fields relating to hydrographic data and hydrographic services, marine transportation, port administration, vessel pilotage, coastal and fishery management, and other disciplines as determined appropriate by the Administrator.” The NOAA Administrator welcomes applications from individuals with expertise in navigation data, products and services; marine cartography and geospatial information systems; geodesy; physical oceanography; coastal resource management, including fisheries management and regional marine planning; and other science-related
(1) What area(s) of expertise, as listed above, would you best represent on this panel?
(2) What geographic region(s) of the country do you primarily associate your expertise with?
(3) Describe your leadership or professional experiences which you believe will contribute to the effectiveness of this panel.
(4) Generally describe the breadth and scope of stakeholders, users, or other groups whose views and input you believe you can represent on the panel.
Cover letter and current resume materials should be sent to the address, email, or fax specified and must be received by September 13, 2013.
Submit cover letter and current resume to Kathy Watson via mail, fax, or email. Mail: Kathy Watson, NOAA National Ocean Service, Office of Coast Survey, NOAA (N/CS), 1315 East West Highway, SSMC3 Rm 6126, Silver Spring, MD 20910; Fax: 301–713–4019; Email:
Kathy Watson, NOAA National Ocean Service, Office of Coast Survey, NOAA (N/CS), 1315 East West Highway, SSMC3 Rm 6126, Silver Spring, Maryland 20910; Telephone: 301–713–2770 x158, Fax: 301–713–4019; Email:
Under 33 U.S.C. 883a,
(a) hydrographic surveying;
(b) shoreline surveying;
(c) nautical charting;
(d) water level measurements;
(e) current measurements;
(f) geodetic measurements;
(g) geospatial measurements;
(h) geomagnetic measurements; and
(i) other oceanographic/marine related sciences.
The Panel has fifteen voting members appointed by the NOAA Administrator in accordance with 33 U.S.C. 892c. Members are selected on a standardized basis, in accordance with applicable Department of Commerce guidance. In addition, there are four non-voting members that serve on the Panel: The Co-Directors of the NOAA-University of New Hampshire Joint Hydrographic Center/Center for Coastal and Ocean Mapping, and the Directors of NOAA's Office of National Geodetic Survey and NOAA's Center for Operational Oceanographic Products and Services. The Director, NOAA Office of Coast Survey, serves as the Designated Federal Official (DFO).
This solicitation is to obtain candidate applications for five (5) voting member vacancies on the Panel as of January 1, 2014. Additional appointments may be made to fill vacancies left by any members who choose to resign during 2014. Be advised that some voting members whose terms expire January 1, 2014, may be reappointed for another full term if eligible.
Full-time officers or employees of the United States may not be appointed as a voting member. Any voting member of the Panel who is an applicant for, or beneficiary of (as determined by the Administrator) any assistance under 33 U.S.C. 892c shall disclose to the Panel that relationship, and may not vote on any matter pertaining to that assistance.
Voting members of the Panel serve a four-year term, except that vacancy appointments are for the remainder of the unexpired term of the vacancy. Members serve at the discretion of the Administrator and are subject to government ethics standards. Any individual appointed to a partial or full term may be reappointed for one additional full term. A voting member may serve until his or her successor has taken office. The Panel selects one voting member to serve as the Chair and another to serve as the Vice Chair. The Vice Chair acts as Chair in the absence or incapacity of the Chair but will not automatically become the Chair if the Chair resigns. Meetings occur at least twice a year, and at the call of the Chair or upon the request of a majority of the voting members or of the Administrator. Voting members receive compensation at a rate established by the Administrator, not to exceed the maximum daily rate payable under section 5376 of title 5, United States Code, when engaged in performing duties for the Panel. Members are reimbursed for actual and reasonable expenses incurred in performing such duties.
Upon selection and agreement to serve on the HSRP Panel, you become a Special Government Employee (SGE) of the United States Government. 18 U.S.C. 202(a) an SGE (s) is an officer or employee of an agency who is retained, designated, appointed, or employed to perform temporary duties, with or without compensation, not to exceed 130 days during any period of 365 consecutive days, either on a fulltime or intermittent basis. Please be aware that after the selection process is complete, applicants selected to serve on the Panel must complete the following actions before they can be appointed as a Panel member:
(a) Security Clearance (on-line Background Security Check process and fingerprinting conducted through NOAA Workforce Management); and
(b) Confidential Financial Disclosure Report—As an SGE, you are required to file a Confidential Financial Disclosure Report to avoid involvement in a real or apparent conflict of interest. You may find the Confidential Financial Disclosure Report at the following Web site.
Estuarine Reserves Division, Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce.
Notice of Public Comment Period for the Wells, Maine National Estuarine Research Reserve Management Plan revision.
Notice is hereby given that the Estuarine Reserves Division, Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce is announcing a thirty day public comment period for the Wells, Maine National Estuarine Research
The revised management plan outlines the administrative structure; the research & monitoring, education, training, and stewardship goals of the reserve; and the plans for future land acquisition and facility development to support reserve operations.
The Wells, Maine National Estuarine Research Reserve takes an integrated approach to management, linking research, education, training and stewardship functions to address high priority issues including the impact of climate change of coastal ecosystems and communities, development pressures, population growth, land-use change, habitat fragmentation, and water quality degradation. Since the last management plan, the reserve implemented its core programs and expanded its monitoring infrastructure to include Sentinel Site protocols; enhanced its facilities, including new Visitor Center exhibits and interpretive trail signs; constructed an environmental chamber for year-round research; and furthered land conservation in the reserve's targeted watersheds.
The revised management plan will serve as the guiding document for the 2,250 acre Wells National Estuarine Research Reserve for the next five years. The Wells National Estuarine Research Reserve Management Plan revision can be viewed at
Alison Krepp at (301) 563–7105 or Erica Seiden at (301) 563–1172 of NOAA's National Ocean Service, Estuarine Reserves Division, 1305 East-West Highway, N/ORM5, 10th floor, Silver Spring, MD 20910.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to and Deletions from the Procurement List.
This action adds products and a service to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes services from the Procurement List previously provided by such agencies.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 10800, Arlington, Virginia, 22202–4149.
Barry S. Lineback, Telephone: (703) 603–7740, Fax: (703) 603–0655, or email
On 6/7/2013 (78 FR 34350–34351); 6/14/2013 (78 FR 35874–35875); 6/21/2013 (78 FR 37524–37525); and 6/28/2013 (78 FR 38952–38953), the Committee for Purchase From People Who Are Blind or Severely Disabled published notices of proposed additions to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the products and service and impact of the additions on the current or most recent contractors, the Committee has determined that the products and service listed below are suitable for procurement by the Federal Government under 41 U.S.C. 8501–8506 and 41 CFR 51–2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products and service to the Government.
2. The action will result in authorizing small entities to furnish the products and service to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 USC 8501–8506) in connection with the products and service proposed for addition to the Procurement List.
Accordingly, the following products and service are added to the Procurement List:
On 6/28/2013 (78 FR 38952–38953), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed deletions from the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the services listed below are no longer suitable for procurement by the Federal Government under 41 USC 8501–8506 and 41 CFR 51–2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to provide the services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 USC 8501–8506) in connection with the services deleted from the Procurement List.
Accordingly, the following services are deleted from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed Additions to the Procurement List.
The Committee is proposing to add services to the Procurement List that will be provided by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S Clark Street, Suite 10800, Arlington, Virginia, 22202–4149.
Barry S. Lineback, Telephone: (703) 603–7740, Fax: (703) 603–0655, or email
This notice is published pursuant to 41 U.S.C. 8503 (a)(2) and 41 CFR 51–2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to provide the services listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
The following services are proposed for addition to the Procurement List for production by the nonprofit agencies listed:
Commodity Futures Trading Commission.
Notice of Meeting of Technology Advisory Committee.
The Commodity Futures Trading Commission (CFTC) announces that on September 12, 2013, the CFTC's Technology Advisory Committee (TAC) will hold a public meeting at the CFTC's Washington, DC headquarters, from 10:00 a.m. to 5:00 p.m. The TAC committee will focus on SDR reporting;
The meeting will be held on September 12, 2013 from 10:00 a.m. to 5:00 p.m. Members of the public who wish to submit written statements in connection with the meeting should submit them by September 6, 2013.
The meeting will take place in the Conference Center at the CFTC's headquarters, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581. Written statements should be submitted to: Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581, attention: Office of the Secretary. Please use the title “Technology Advisory Committee” in any written statement you may submit. Any statements submitted in connection with the committee meeting will be made available to the public.
Andy Menon, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581, (202) 418–5502.
The TAC meeting will focus on significant issues facing the futures and swaps industries as the Commission continues to finalize rules under the Dodd-Frank Act. Those issues include: (1) Data standardization in the context of SDR data reporting; (2) the Commission's upcoming concept release on automated trading environments; and (3) various issues surrounding the registration and operation of swap execution facilities (“SEFs”).
The meeting will be open to the public with seating on a first-come, first-served basis, and will be Web cast on the CFTC's Web site,
Members of the public can listen to the meeting by telephone by calling a toll-free telephone line to connect to a live audio feed. Call-in participants should be prepared to provide their first name, last name, and affiliation.
Domestic Toll Free: 1–866–844–9416.
International Toll: Under Related Documents to be posted on
Conference ID: 6649269.
Call Leader Name: Wilbert Gross.
Pass Code/Pin Code: CFTC.
5 U.S.C. app. 2 § 10(a)(2).
10:00 a.m., Friday, September 6, 2013.
1155 21st St. NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance, Examinations, and Enforcement Matters. In the event that the time, date, or place of this meeting changes, an announcement of the change, along with the new time, date, or place of the meeting will be posted on the Commission's Web site at
Melissa D. Jurgens, 202–418–5516.
10:00 a.m., Friday, September 20, 2013.
1155 21st St. NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance, Examinations, and Enforcement Matters. In the event that the time, date, or place of this meeting changes, an announcement of the change, along with the new time, date, or place of the meeting will be posted on the Commission's Web site at
Melissa D. Jurgens, 202–418–5516.
10:00 a.m., Friday, September 13, 2013.
1155 21st St. NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance, Examinations, and Enforcement Matters. In the event that the time, date, or place of this meeting changes, an announcement of the change, along with the new time, date, or place of the meeting will be posted on the Commission's Web site at
Melissa D. Jurgens, 202–418–5516.
Bureau of Consumer Financial Protection.
Notice of a Revised Privacy Act System of Records.
In accordance with the Privacy Act of 1974, as amended, the Bureau of Consumer Financial Protection, hereinto referred to as the Consumer Financial Protection Bureau (CFPB or Bureau), gives notice of the establishment of a revised Privacy Act System of Records.
Comments must be received no later than September 16, 2013. The new system of records will be effective September 25, 2013, unless the comments received result in a contrary determination.
You may submit comments by any of the following methods:
•
•
Comments will be available for public inspection and copying at 1700 G Street NW., Washington, DC 20552 on official business days between the hours of 10 a.m. and 5 p.m. Eastern Time. You can make an appointment to inspect comments by telephoning (202) 435–
Claire Stapleton, Chief Privacy Officer, Consumer Financial Protection Bureau, 1700 G Street NW., Washington, DC 20552, (202) 435–7220.
The CFPB revises its Privacy Act System of Records Notice (SORN) “CFPB.006—Social Networks and Citizen Engagement System.” In revising this SORN, the CFPB modifies the authorities under which this system is maintained; modifies the purpose(s) for which the system is maintained; modifies the notification procedures for individuals seeking access to records maintained in this system; modifies the system location, system manager(s) and address; consolidates two routine uses (previously routine uses 6 and 7) which include the disclosure of personally identifiable information (PII) from the system to the U.S. Department of Justice (DOJ) for its use in providing legal advice to the CFPB or in representing the CFPB in a legal proceeding; and provides clarifying language in the categories of individuals for the system, the categories of records for the system, the retention and disposal of records in the system, and the record source categories for the system.
The report of the revised system of records has been submitted to the Committee on Oversight and Government Reform of the House of Representatives, the Committee on Homeland Security and Governmental Affairs of the Senate, and the Office of Management and Budget, pursuant to Appendix I to OMB Circular A–130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated November 30, 2000,
The revised system of records entitled “CFPB.006—Social Networks and Citizen Engagement System” is published in its entirety below.
Social Networks and Citizen Engagement System
Consumer Financial Protection Bureau, 1700 G Street NW., Washington, DC 20552.
Users of social media who interact with the CFPB through the Bureau's Web site, or through various social media outlets, including but not limited to third-party sites and services such as Facebook, Twitter, YouTube, LinkedIn, and Flickr. Other covered individuals may include those who sign on to various parts of the CFPB Web site with a user identity provided by a third-party, including but not limited to sites and services such as Disqus, Facebook, and Twitter. These may be members of the public, employees, or contractors.
Records maintained in the system may contain information that an individual shares voluntarily with the CFPB through various social media sites and services. They may also contain information that is stored to ensure that an individual can access Web sites where a login is required. This may include without limitation: name, username, email address, birth date, security questions, IP addresses, location, passwords, authentication, business affiliation, demographic information, videos, photos, and other general information.
Public Law 111–203, Title X, Sections 1011, 1012, 1021, codified at 12 U.S.C. 5491, 5492, 5511. Executive Order 13571, Streamlining Service Delivery and Improving Customer Service, April 27, 2011.
The information in the system is being collected to facilitate internal and external interactions concerning the CFPB and CFPB programs. The use of social media platforms will increase collaboration and transparency with the public, as well as employees and contractors. The use of social media will enable the CFPB to interact with the public in effective and meaningful ways, encourage the wide sharing of information regarding consumer financial issues and the strengthening of an online community of consumers, and ensure that critical information about the agency and key consumer finance issues is distributed.
These records may be disclosed, consistent with the CFPB's Disclosure of Records and Information Rules, promulgated at 12 CFR 1070
(1) Appropriate agencies, entities, and persons when: (a) The CFPB suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (b) the CFPB has determined that, as a result of the suspected or confirmed compromise, there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the CFPB or another agency or entity) that rely upon the compromised information; and (c) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the CFPB's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(2) Another federal or state agency to (a) permit a decision as to access, amendment or correction of records to be made in consultation with or by that agency, or (b) verify the identity of an individual or the accuracy of information submitted by an individual who has requested access to or amendment or correction of records;
(3) The Office of the President in response to an inquiry from that office made at the request of the subject of a record or a third party on that person's behalf;
(4) Congressional offices in response to an inquiry made at the request of the individual to whom the record pertains;
(5) Contractors, agents, or other authorized individuals performing work on a contract, service, cooperative agreement, job, or other activity on behalf of the CFPB or Federal Government and who have a need to access the information in the performance of their duties or activities;
(6) The DOJ for its use in providing legal advice to the CFPB or in representing the CFPB in a proceeding before a court, adjudicative body, or other administrative body, where the use of such information by the DOJ is deemed by the CFPB to be relevant and necessary to the advice or proceeding,
(a) The CFPB;
(b) Any employee of the CFPB in his or her official capacity;
(c) Any employee of the CFPB in his or her individual capacity where DOJ has agreed to represent the employee; or
(d) The United States, where the CFPB determines that litigation is likely to affect the CFPB or any of its components;
(7) A court, magistrate, or administrative tribunal in the course of an administrative proceeding or judicial proceeding, including disclosures to opposing counsel or witnesses (including expert witnesses) in the course of discovery or other pre-hearing exchanges of information, litigation, or settlement negotiations, where relevant or potentially relevant to a proceeding, or in connection with criminal law proceedings; and
(8) Appropriate federal, state, local, foreign, tribal, or self-regulatory organizations or agencies responsible for investigating, prosecuting, enforcing, implementing, issuing, or carrying out a statute, rule, regulation, order, policy, or license if the information may be relevant to a potential violation of civil or criminal law, rule, regulation, order, policy or license.
Paper and electronic records.
Records are retrievable by full-text search. Records may also be retrieved by personal identifiers, which may include without limitation: name, username, email address, IP addresses, geographic information, and demographic information.
Access to electronic records that are not otherwise available to the general public by virtue of their presence on social media sites is restricted to authorized personnel who have been issued non-transferrable access codes and passwords. Other records are maintained in locked file cabinets or rooms with access limited to those personnel whose official duties require access.
The CFPB will manage all computer and paper files in the system as permanent records until the disposition schedule for these records is approved by the National Archives and Records Administration, at which time, the CFPB will dispose of such files in accordance with the schedule.
Consumer Financial Protection Bureau, Assistant Director, Consumer Engagement, 1700 G Street NW., Washington, DC 20552.
Individuals seeking notification and access to any record contained in this system of records, or seeking to contest its content, may inquire in writing in accordance with instructions appearing the CFPB's Disclosure of Records and Information Rules, promulgated at 12 CFR 1070
See “Notification Procedures” above.
See “Notification Procedures” above.
Information in this system is obtained from individuals who voluntarily interact with the CFPB through various social media sites and services, or as a result of public outreach.
None.
Defense Security Cooperation Agency, Department of Defense.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104–164 dated July 21, 1996.
Ms. B. English, DSCA/DBO/CFM, (703) 601–3740.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittals 12–67 with attached transmittal, policy justification, and Sensitivity of Technology.
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The Government of Iraq has requested a possible sale of 40 AVENGER Fire Units, 681 STINGER Reprogrammable Micro-Processor (RMP) Block I 92H Missiles, 13 AN/MPQ–64F1 SENTINEL Radars, 7 AN/YSQ–184D Forward Area Air Defense Command, Control, and Intelligence (FAAD C2I) Systems, 75 AN/VRC–92E SINCGARS Radios, 3 HAWK XXI Batteries (6 Fire Units) which include 6 Battery Fire Direction Centers, 6 High Powered Illuminator Radars, 216 MIM–23P HAWK Tactical Missiles, 2 Mobile Battalion Operation Centers (BOC), 3 HAWK XXI BOC Air Defense Consoles (ADCs), 1DS/GS Shop 20, 1 DS/GS Shop 21, 1 Mini-Certified Round Assembly Facility (MCRAF), Air Command and Control (C2) systems and surveillance radars for the Integrated Air Defense Systems that includes TPS–77 Long-Range Radars (LRR) and Omnyx-I0 Air Command and Control System, and 10 Medium Range Radars. Also included: Ground Air Transmit Receive Ultra High Frequency/Very High Frequency radio capability, facilities and construction for one (1) underground Air Defense Operations Center and two (2) Air Defense Sector Operations Centers, spare and repair parts, repair and return, software support, systems integration, long haul communication technical integration, communications equipment, support equipment and sustainment, tools and test equipment, publications and technical documentation, personnel training and training equipment, U.S. Government and contractor representative engineering, technical, and logistics support services, and other related elements of logistics support. The estimated cost is $2.403 billion.
This proposed sale will contribute to the foreign policy and national security of the United States by helping to improve the security of a friendly country. This proposed sale directly supports the Iraqi government and serves the interests of the Iraqi people and the United States.
This proposed sale of Ground Based Air Defense Systems will help the Government of Iraq to modernize its armed forces. The proposed air defense system will provide the Iraqi Air Defense Command situational awareness of the country's airspace and a baseline tactical radar and threat intercept capability. This capability will provide Iraq with the ability to contribute to regional air defenses and reduce its vulnerability to air attacks and also enhance interoperability between the Government of Iraq, the U.S., and other allies.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
The principal contractors involved in this program are: Lockheed Martin Corporation, San Diego, California; Thales Raytheon Systems, Fullerton, California; Boeing Company and American General, Letterkenny Army Depot, Chambersburg, Pennsylvania; Raytheon Integrated Defense Systems, Andover, Massachusetts; Northrop Grumman, Rolling Meadows, Illinois; and Kratos Defense and Aerospace, Huntsville, Alabama. There are no known offset agreements proposed in connection with this potential sale.
Implementation of this proposed sale will require 20–25 U.S. Government or contractor representatives to travel to Iraq for a period of 8–10 weeks for equipment checkout and training.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
Defense Security Cooperation Agency, Department of Defense.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104–164 dated July 21, 1996.
Ms. B. English, DSCA/DBO/CFM, (703) 601–3740.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittals 13–41 with attached transmittal, and policy justification.
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The Government of Australia has requested a possible sale of up to 4,002 M1156 Precision Guidance Kits (PGK)
Australia is an important ally in the Western Pacific that contributes significantly to ensuring peace and economic stability in the region. Australia has requested these PGKs to provide for the defense of deployed troops, in pursuit of regional security objectives and interoperability with the United States. This proposed sale is consistent with U.S. objectives to strengthen Australia's military capabilities and facilitate burden sharing.
(U) The Government of Australia requires these PGKs to provide capabilities vital to defend against external and other potential threats. This proposed sale supports Australia's efforts to effectively secure its borders and littoral waters, as well as conduct counter-terrorism/counter-piracy operations. The Government of Australia is capable of absorbing and maintaining these guidance kits in its inventory.
The proposed sale of this equipment will not alter the basic military balance in the region.
The principal contractor will be ATK Armament Systems of Plymouth, Minnesota. There are no known offset agreements proposed in connection with this potential sale.
Implementation of this sale will not require the assignment of U.S. Government or contractor representatives to Australia.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
Defense Security Cooperation Agency, Department of Defense.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104–164 dated July 21, 1996.
Ms. B. English, DSCA/DBO/CFM, (703) 601–3740.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittals 13–21 with attached transmittal, and policy justification.
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The Government of Iraq has requested a possible sale of 19 Mobile Troposcatter Radio Systems, 10 Mobile
This proposed sale will contribute to the foreign policy and national security of the United States by improving the Iraqi military's situational awareness and enhancing command and control from its National Military Headquarters to major subordinate commands.
The Government of Iraq intends to use these defense articles and services to provide critical redundancy for national level command and control.
This proposed sale of this equipment and support will not alter the basic military balance in the region.
The principal contractor will be Raytheon Company of Arlington, Virginia. There are no known offset agreements proposed in connection with this potential sale.
Implementation of this proposed sale will require U.S. Government and contractor representatives to travel to Iraq on an as-needed basis to provide program and technical support and training.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
Assistant Secretary of Defense (Health Affairs), DoD.
Notice of meeting.
Under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., as amended, 41 CFR 102–3.150) and the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended) the Department of Defense (DoD) announces the following Federal advisory committee meeting of the Uniform Formulary Beneficiary Advisory Panel (“the Panel”).
Thursday, September 19, 2013, from 9:00 a.m. to 1:00 p.m.
Naval Heritage Center Theater, 701 Pennsylvania Avenue NW., Washington, DC 20004.
CDR Joseph Lawrence, DFO, Uniform Formulary Beneficiary Advisory Panel, 4130 Stanley Road, Suite 208, Building 1000, San Antonio, TX 78234–6012. Telephone: (210) 295–1271 Fax: (210) 295–2789. Email Address:
Written statements that do not pertain to the scheduled meeting of the Panel may be submitted at any time. However, if individual comments pertain to a specific topic being discussed at a planned meeting, then these statements must be submitted no later than 5 business days prior to the meeting in question. The DFO will submit all written statements and provide copies to all the committee members.
To ensure timeliness of comments for the official record, the Panel encourages that individuals and interested groups consider submitting written statements instead of addressing the Panel.
Department of the Army, DoD.
Notice of Availability.
The Department of the Army announces the availability of the Draft Programmatic Environmental Impact Statement (DPEIS) for implementation of activities and operations at Yuma Proving Ground (YPG). This document
The public comment period will end 45 days after publication of an NOA in the
For questions concerning the DPEIS, please contact Mr. Sergio Obregon, U.S. Army Garrison Yuma Proving Ground, National Environmental Policy Act Coordinator, IMYM–PWE, Yuma, AZ 85365–9498. Written comments may be mailed to that address or emailed to
Mr. Chuck Wullenjohn, Yuma Proving Ground Public Affairs Office, at (928) 328–6189 Monday through Thursday from 6:30 a.m. to 5:00 p.m., Mountain Standard Time.
The Department of the Army prepared a DPEIS to analyze potential impacts from new construction, changes in testing and training, and activities conducted under private industry partnerships. Potential renewable energy initiatives are also discussed in the DPEIS, but project-specific National Environmental Policy Act (NEPA) analysis separate from the DPEIS will be required prior to implementing any specific renewable energy initiatives.
There are two alternatives analyzed in this DPEIS: (1) No Action which describes the conditions under which no new actions would occur. There would be no changes in testing and training activities conducted at YPG, and (2) the Proposed Action which includes new construction and associated demolition, testing and training activities occurring on YPG, and new testing and training proposed by tenants to meet anticipated testing or training needs. The programmatic components of the DPEIS consist of a detailed analysis of well defined short-term projects and long-term projects with unspecified locations. These are analyzed to identify the maximum potential impact on a broad scale. These activities would be subjected to site-specific NEPA analysis prior to implementation and could include analysis of other reasonable alternatives to the identified action. Six other alternatives were considered but eliminated from further analysis.
The PEIS will be used to develop a future Real Property Master Plan (RPMP) at YPG. This analysis will support the future planning to ensure that YPG considers environmental impacts as it seeks to improve facilities and capabilities for the future. The analysis in the PEIS will also support the alternatives analysis for the RPMP. The DPEIS will also address cumulative impacts for existing, proposed, and reasonably foreseeable projects.
For the Proposed Action, the analysis is structured to allow the Army to select a subset of the proposed activities or, for certain activities, to select from among a range of options with regard to magnitude, frequency, or duration. The Army is not seeking to expand the boundaries of YPG and all proposed activities would be conducted within the boundaries of the installation or its currently authorized airspace. No changes are proposed to ongoing activities conducted at off-post areas in Arizona and California that are used for specific testing activities under conditions not found at YPG. Therefore, activities conducted in these areas are not included in the analysis in the DPEIS.
The potential for environmental impacts is greatest for the following resource areas: soils, air quality, solid and hazardous materials/waste, vegetation, and wildlife. Impacts to these resources may occur as a result of converting existing land use to support military testing and training or from increasing the scope or magnitude of testing activities.
All governmental agencies, interest groups, and individuals are invited to participate in public meetings and/or submit comments in writing. Information on the time and location of two public meetings will be published locally. In addition, YPG is engaged in consultation with federally recognized Native American tribes regarding the Proposed Action. YPG will meet the obligation to consult under Section 106 of the National Historic Preservation Act concurrently with this NEPA process through a Programmatic Agreement.
At this time, a Preferred Alternative has not been selected. The Army will select a Preferred Alternative after consideration of input from government agencies, Native American tribes, non-governmental organizations, and members of the public.
Copies of the DPEIS are available at the Yuma County Library, Main Branch, 2951 S. 21st Drive and the Yuma Proving Ground Post Library. The DPEIS can also be viewed at the following Web site:
Department of the Army, DoD.
Notice of availability.
The U.S. Army Pacific (USARPAC) and U.S. Army Garrison, Hawai`i, (USAG–HI) announce the decision to construct and operate a new Infantry Platoon Battle Course (IPBC) and associated infrastructure at Pōhakuloa Training Area (PTA), Hawai`i. This decision allows the Army to construct and operate an IPBC that will meet Army training requirements and will support the live-fire collective training needs of the Army, Army Reserve, and Hawai`i Army National Guard, as well as other Service components that are stationed or train in Hawai`i.
To comply with the National Environmental Policy Act (NEPA), the Department of the Army prepared an Environmental Impact Statement (EIS) that evaluated the potential environmental and socioeconomic effects associated with alternatives to construct and operate the IPBC. In the Final EIS published in the
Email requests to obtain a copy of the ROD can be addressed to
US Army Environmental Command Public Affairs Office, at 1–855–846–3940 (toll free).
The IPBC will be used to train and test infantry platoons and other units on the skills necessary to conduct collective (group) tactical movement techniques, and to detect, identify, engage, and defeat stationary and moving infantry and armor targets in a tactical array. Soldiers will engage targets with small arms, machine guns, and other weapon systems as part of live-fire exercises. This includes air-ground integration where Soldiers maneuvering on the IPBC can coordinate air support. In addition to live-fire, the range would also be used for training with sub-caliber and/or laser training devices. This type of training is mission essential for Soldiers to be prepared to encounter threats during combat operations overseas.
The Army identified and analyzed environmental and socioeconomic impacts associated with the proposed IPBC in the Final EIS. The major potential environmental impacts are to air quality, threatened and endangered species, cultural sites, encountering munitions and explosives of concern, and igniting wildfires. Significant impacts could occur to cultural resources. Prior to making its decision, the Army considered comments received during the EIS scoping and comment process, and the 30-day waiting period after the Final EIS. The Army's Record of Decision includes the final measures the Army will adopt to avoid, minimize, and mitigate impacts to identified cultural resources.
Notice.
The Defense Acquisition Regulations System has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
Consideration will be given to all comments received by September 16, 2013.
Written comments and recommendations on the proposed information collection should be sent to Ms. Seehra at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
You may also submit comments, identified by docket number and title, by the following method:
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Written requests for copies of the information collection proposal should be sent to Ms. Toppings at WHS/ESD/Information Management Division, 4800 Mark Center Drive, 2nd Floor, East Tower, Suite 02G09, Alexandria, VA 22350–3100.
U.S. Army Corps of Engineers, DoD.
Notice of availability.
The U.S. Army Corps of Engineers (USACE) is issuing this notice to advise the public that a Final Environmental Impact Statement (Final EIS) has been completed and is available for review and comment.
In accordance with the National Environmental Policy Act (NEPA), we have filed the Final EIS with the U.S. Environmental Protection Agency (EPA) for publication of their notice of availability in the
A public meeting for the Draft EIS was held on Thursday, May 31, 2012 at the
The Final EIS can be viewed online at
Bronson Public Library—612 E Hathaway Ave., Bronson, Florida 32621.
Cedar Key Public Library—460 Second Street, Cedar Key, Florida 32625.
Luther Callaway Public Library—104 NE Third Street, Chiefland, Florida 32626.
Williston Public Library—10 SE First Street, Williston, Florida 32696.
A.F. Knotts Public Library—11 56th Street, Yankeetown, Florida 32698.
Mr. Ed Sarfert, Senior Project Manager, U.S. Army Corps of Engineers, Jacksonville District, 41 N. Jefferson Street, Suite 301, Pensacola, Florida 32502, Telephone: 850–439–9533, Fax: 850–433–8160.
Tarmac America L.L.C. (Tarmac) proposes to construct a limestone mine in Levy County, Florida to produce FDOT- and commercial-grade limestone aggregate for markets within west-central Florida. As proposed, direct impacts of up to 2,069 acres of wetlands and 1,818 acres of uplands would occur directly from limestone extraction, material stockpiling, roads, and other infrastructure over a period of approximately 100 years. At present, the majority of the property is an actively managed timber operation, with most of the site in varying developmental stages of pine plantation and mixed hardwood/pine forest. Much of the surrounding land is in silviculture use, with scattered residential parcels. The information compiled in this EIS will be used by the USACE to determine whether the proposed activities should be authorized and permitted by the USACE. Tarmac would need to obtain a Department of the Army permit pursuant to Section 404 of the Clean Water Act. This Final EIS evaluates the potential environmental impacts associated with a no action alternative, and seven onsite action alternatives, including Tarmac's preferred alternative above. Under the seven other alternatives analyzed in the Final EIS, mining activities involving discharges of fill material in wetlands could be authorized for varying acreages and lengths of time upon issuance of a Record of Decision.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of open meeting.
In accordance with the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102–3, announcement is made of the forthcoming meeting.
The primary purpose of this meeting is for the Chief of Engineers to receive the views of his Environmental Advisory Board. However, any member of the public, including interested organizations, may submit written comments to the EAB concerning the Board's mission and functions, or in response to the stated agenda of the meeting. Written statements should be sent to the DFO at: Mr. John C. Furry (3I23), DFO Chief of Engineers Environmental Advisory Board, U.S. Army Corps of Engineers, 441 G Street NW., Washington, DC 20314–1000; or emailed to
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR § 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any of the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any of the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
The U.S. Department of the Interior's Bureau of Land Management and the U.S. Department of Agriculture's Forest Service are joint lead agencies for the above EIS.
Under MAP–21 section 1319, FHWA has issued a single FEIS and ROD. Therefore, the 30-day wait/review period under NEPA does not apply to this action.
Federal Deposit Insurance Corporation.
Update Listing of Financial Institutions in Liquidation.
Notice is hereby given that the Federal Deposit Insurance Corporation (Corporation) has been appointed the sole receiver for the following financial institutions effective as of the Date Closed as indicated in the listing. This list (as updated from time to time in the
The Commission gives notice that the following applicants have filed an application for an Ocean Transportation Intermediary (OTI) license as a Non-Vessel-Operating Common Carrier (NVO) and/or Ocean Freight Forwarder (OFF) pursuant to section 19 of the Shipping Act of 1984 (46 U.S.C. 40101). Notice is also given of the filing of applications to amend an existing OTI license or the Qualifying Individual (QI) for a licensee.
Interested persons may contact the Office of Ocean Transportation Intermediaries, Federal Maritime Commission, Washington, DC 20573, by telephone at (202) 523–5843 or by email at
By the Commission.
Board of Governors of the Federal Reserve System.
Notice is hereby given of the final approval of proposed information collections by the Board of Governors of the Federal Reserve System (Board) under OMB delegated authority, as per 5 CFR 1320.16 (OMB Regulations on Controlling Paperwork Burdens on the Public). Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. Copies of the Paperwork Reduction Act Submission, supporting statement and approved collection of information instrument are placed into OMB's public docket files. The Federal Reserve may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it displays a currently valid OMB control number.
The FR 4011 is voluntary and is authorized under Sections 4(j) and 4(k) of the BHC Act, 12 U.S.C. 1843(j) through (k); and sections 225.88, and 225.89, of Regulation Y, 12 CFR 225.88, and 225.89.
The FR 4012 is mandatory and is authorized under Section 4(l)(1) and 4(m) of the BHC Act, 12 U.S.C. 1843(l)(1) and (m); section 10(c)(2)(H) of the Home Owner's Loan Act; section 8(a) of the International Banking Act, 12
The FR 4017 is required to obtain a benefit and is authorized under Section 9 of the Federal Reserve Act, 12 U.S.C. 335; and section 208.76 of Regulation H, 12 CFR 208.76.
The FR 4019 is required to obtain a benefit and is authorized under Section 4(k)(7) of the BHC Act, 12 U.S.C. 1843(k)(7); and sections 225.171(e)(3), 225.172(b)(4), and 225.173(c)(2) of Regulation Y, 12 CFR 225.171(e)(3), 225.172(b)(4), and 225.173(c)(2).
The FR 4023 is mandatory and is authorized under Section 4(k)(7) of the BHC Act, 12 U.S.C. 1843(k)(7); and sections 225.171(e)(4) and 225.175 of Regulation Y, 12 CFR 225.171(e)(4) and 225.175.
For the FR 4010, FR 4011, FR 4017, FR 4019, and information related to a failure to meet capital requirements on the FR 4012, a company may request confidential treatment of the information contained in these information collections pursuant to section (b)(4) and (b)(6) of the Freedom of Information Act (FOIA) (5 U.S.C. 552 (b)(4) and (b)(6)). Information related to a failure to meet management requirements on the FR 4012 is confidential and exempt from disclosure under section (b)(4), because the release of this information would cause substantial harm to the competitive position of the entity, and (b)(8) if the information is related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions. Since the Federal Reserve does not collect the FR 4023, no issue of confidentiality under the FOIA arises. FOIA will only be implicated if the Board's examiners retained a copy of the records in their examination or supervision of the institution, and would likely be exempt from disclosure pursuant to FOIA (5 U.S.C. 552(b)(4), (b)(6), and (b)(8)).
There are no formal reporting forms for these collections of information, which are event generated, though in each case the type of information required to be filed is described in the Board's regulations. These collections of information are required pursuant to amendments made by the GLB Act to the BHC Act or the Federal Reserve Act, or Board regulations issued to carry out the GLB Act.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than September 3, 2013.
A. Federal Reserve Bank of Minneapolis (Jacqueline G. King, Community Affairs Officer) 90 Hennepin Avenue, Minneapolis, Minnesota 55480–0291:
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The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of
A. Federal Reserve Bank of Atlanta (Chapelle Davis, Assistant Vice President) 1000 Peachtree Street NE., Atlanta, Georgia 30309:
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Notice is hereby given that I have delegated to the Administrator, Centers for Medicare & Medicaid Services (CMS), and the Director, Office of Intergovernmental and External Affairs (OIEA), the authorities under Sections 1701–1704 of the Public Health Service Act (PHSA) [42 U.S.C. 300u—300u–3], as amended.
Notwithstanding actions previously taken pursuant to other similar legal authorities, I hereby affirm and ratify any actions taken by the Administrator, CMS and Director, OIEA, which involved the exercise of the authorities under Sections 1701–1704 of the PHSA [42 U.S.C. 300u—300u–3], as amended, delegated herein prior to the effective date of this delegation of authorities.
Nothing in this delegation of authorities is intended to restrict the exercise of concurrent authorities under other statutory provisions.
This delegation of authorities excludes the authority to issue regulations and to submit reports to Congress.
These authorities shall be exercised under the Department's policy on regulations and the existing delegation of authority to approve and issue regulations.
This delegation of authorities is effective immediately.
These authorities may be re-delegated.
44 U.S.C. 3101.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by
When commenting on the proposed information collections, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be received by the OMB desk officer via one of the following transmissions: OMB, Office of Information and Regulatory Affairs, Attention: CMS Desk Officer, Fax Number: (202) 395–6974
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786–1326.
Reports Clearance Office at (410) 786–1326.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501–3520), federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the
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These data, along with the calculated eligibility payment error rate and lower limit are certified by the State Medicaid Director (or designee) and submitted to the Regional Office. The collection of information is also necessary to implement provisions from the Children's Health Insurance Program Reauthorization Act of 2009 (CHIPRA) (Pub. L. 111–3) with regard to the MEQC and Payment Error Rate Measurement (PERM) programs.
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The focus groups will provide us with answers to fundamental “what, how, and why” questions about beneficiaries' experiences with care and access to and coordination of care. We will use the information obtained via in-person, focus groups for the evaluation of the MAPCP Demonstration. The focus group data will be collected to supplement other qualitative and quantitative analyses from primary and secondary data sources by providing data on context, structure, and process, as well as select aspects of the key outcomes. The data gathered from the interviews will allow for more complete interpretation of the quantitative claims and other data analysis by taking into account the unique perspectives of beneficiaries. Subsequent to the publication of the 60-day
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In order to provide appropriate and timely guidance and technical assistance, the Secretary must have access to timely, periodic information regarding State progress. Consequently, the information collection associated with these grants is essential to facilitating reasonable and appropriate federal monitoring of funds, providing statutorily-mandated assistance to States to implement Exchanges in accordance with Federal requirements, and to ensure that States have all necessary information required to proceed, such that retrospective corrective action can be minimized.
The submitted revision adds sets of Outcomes and Operational Metrics to States' data collection requirements; we will use the resulting data to evaluate Marketplace performance and overall effectiveness of the ACA. Key areas of measurement are the effectiveness of eligibility determination and enrollment processes, impact on affordability for consumers, and the effect of Marketplace participation on health insurances markets. Furthermore, these metrics facilitate actionable feedback and technical assistance to States for quality improvement efforts during the critical early period of operations. This funding opportunity was first released on January 20, 2011.
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Congress sought to reduce the losses to the Medicare program by requiring in 42 U.S.C. 1395y(b)(5) that the Internal Revenue Service (IRS), the Social Security Administration (SSA), and we perform an annual data match (the IRS/SSA/CMS Data Match, or “Data Match” for short). We use the information obtained through Data Match to contact employers concerning possible application of the MSP provisions by requesting information about specifically identified employees (either a Medicare beneficiary or the working spouse of a Medicare beneficiary). This statutory data match and employer information collection activity enhances our ability to identify both past and present MSP situations.
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect
Comments must be received by October 15, 2013:
When commenting, please reference the document identifier or OMB control number (OCN). To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
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To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786–1326.
Reports Clearance Office at (410) 786–1326
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
CMS–10190 State Plan Preprints to Implement Sections 6083, 6036, 6041, 6042, 6043, and 6044 of the Deficit Reduction Act (DRA) of 2005
CMS–R–52 Conditions for Coverage of Suppliers of End Stage Renal Disease (ESRD) Services and Supporting Regulations
CMS–10492 Data Submission for the Federally-facilitated Exchange User Fee Adjustment
CMS–10416 Blueprint for Approval of Affordable Health Insurance Marketplaces
Under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501–3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the
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Eligible organizations are required to self-certify that they are eligible for this accommodation and provide a copy of such self-certification to their third party administrators. The final rule also set forth processes and standards to fund the payments for the contraceptive services that are provided for participants and beneficiaries in self-insured plans of eligible organizations under the accommodation described previously, through an adjustment in the Federally-facilitated Exchange (FFE) user fee payable by an issuer participating in an FFE.
In order to facilitate the FFE user fee adjustment, and ensure that these user fee adjustments reflect payments for contraceptive services provided under this accommodation and that the adjustment is applied to the appropriate participating issuer in an FFE, the final rule requires an information collection from applicable participating issuers and third party administrators. In particular, the final regulations at 45 CFR 156.50(d)(2)(i) provides that a participating issuer who seeks an FFE user fee adjustment must submit to HHS in the year following the benefit year in which payments for contraceptive services were made under the previously mentioned accommodation, identifying information for the participating issuer, each third party administrator, and each self-insured group health plan, as well as the total dollar amount of the payments for contraceptive services that were provided during the applicable calendar year under the accommodation. The final regulation at 45 CFR 156.50(d)(2)(iii) also requires the third party administrator to submit to HHS identifying information for the third party administrator, the participating issuer, and each self-insured group health plan, as well as the total number of participants and beneficiaries in each self-insured group health plan during the applicable calendar year, the total dollar amount of payments made for contraceptive services, and an attestation that the payments for contraceptive services were made in compliance with 26 CFR 54.9815–2713A(b)(2) or 29 CFR 2590.715–2713A(b)(2).
Furthermore, to determine the potential number of submissions provided by third party administrators and allow HHS to prepare to receive submissions in calendar year 2015, the final regulation at 45 CFR 156.50(d)(2)(ii) requires third party administrators to submit to HHS a notification that the third party administrator intends for a participating issuer to seek an FFE user fee adjustment, by the later of January 1, 2014, or the 60th calendar day following the date on which the third party administrator receives a copy of a self-certification from an eligible organization.
The burden associated with these processes includes the time for applicable participating issuers and third party administrators to submit identifying information and total payments made for contraceptive services in the prior calendar year. HHS is unable to estimate the number of organizations that will seek user fee adjustments and seeks comments on this number in this notice. We anticipate that participating issuers in an FFE seeking a user fee adjustment and third party administrators with respect to which the FFE user fee adjustment is received will submit this information electronically.
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Given the innovative nature of Marketplaces and the statutorily-prescribed relationship between the secretary and states in their development and operation, it is critical that the Secretary work closely with states to provide necessary guidance and technical assistance to ensure that states can meet the prescribed timelines, federal requirements, and goals of the statute.
States seeking to establish a Marketplace must build a Marketplace that meets the requirements set out in section 1311(d) of the Affordable Care Act and 45 CFR 155.105. In order to ensure that a state seeking approval as a State-based Marketplace, State-based SHOP, or State Partnership Marketplace in the Federally-facilitated Marketplace meet all applicable requirements, the Secretary will require a state to submit a Blueprint for approval and to demonstrate operational readiness through virtual or on-site readiness review. Submission of the Blueprint Application will be online.
Copies of the proposed collection may be obtained by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 370 L'Enfant Promenade SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. All requests should be identified by the title of the information collection. Email address:
OMB is required to make a decision concerning the collection of information between 30 and 60 days after publication of this document in the
Estimated Total Annual Burden Hours: 103.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by September 16, 2013.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202–395–7285, or emailed to
Jonna Capezzuto, Office of Operations, Food and Drug Administration, 1350 Piccard Dr., PI50–400B, Rockville, MD 20850, 301–796–3794,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
This regulation relates to Agency management and organization and has two purposes. The first is to implement section 503(g) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 353(g)), as added by the Safe Medical Devices Act of 1990 (Pub. L. 101–629), and amended by the Medical Device User Fee and Modernization Act of 2002 (Pub. L. 107–250), by specifying how FDA will determine the organizational component within FDA assigned to have primary jurisdiction for the premarket review and regulation of products that are comprised of any combination of: (1) A drug and a device; (2) a device and a biological product; (3) a biological product and a drug; or (4) a drug, a device, and a biological product. The second purpose of this regulation is to enhance the efficiency of Agency management and operations by providing procedures for classifying and determining which Agency component is designated to have primary jurisdiction for any drug, device, or biological product where such jurisdiction is unclear or in dispute.
The regulation establishes a procedure by which an applicant may obtain an assignment or designation determination. The regulation requires that the request include the identity of the applicant, a comprehensive description of the product and its proposed use, and the applicant's recommendation as to which Agency component should have primary jurisdiction, with an accompanying statement of reasons. The information submitted would be used by FDA as the basis for making the assignment or designation decision. Most information required by the regulation is already required for premarket applications affecting drugs, devices, biological products, and combination products. The respondents will be businesses or other for-profit organizations.
In the
FDA estimates the burden of this collection of information as follows:
These burden estimates are based on the number of applications FDA received over the past 2 fiscal years.
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the President's Cancer Panel.
The meeting will be open to the public, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Advisory Council for Nursing Research.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and/or contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications and/or contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Advisory Council on Aging.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit. Information is also available on the Institute's/Center's home page:
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the NCI-Frederick Advisory Committee.
The meeting will be open to the public, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
The ATRF is located at 8560 Progress Drive, Frederick, MD 21701 and their Web site is:
For a map and directions, please visit
When available, an agenda and any additional information for the meeting will be posted at:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the Advisory Committee to the Director, National Institutes of Health. The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended because the premature disclosure of grant
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of meetings of the National Center for Advancing Translational Sciences.
The meetings will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Periodically, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish a summary of information collection requests under OMB review, in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these documents, call the SAMHSA Reports Clearance Officer on (240) 276–1243.
The Substance Abuse and Mental Health Services Administration's (SAMHSA) Center for Mental Health Services (CMHS) will continue to conduct the cross-site evaluation of the Garrett Lee Smith Memorial Youth Suicide Prevention and Early Intervention State/Tribal Programs and the Garrett Lee Smith Memorial Youth Suicide Prevention Campus Programs. The data collected through the cross-site evaluation addresses four stages of program activity: (1) The context stage includes a review of program plans, such as grantee's target population, target region, service delivery mechanisms, service delivery setting, types of program activities to be funded and evaluation activities; (2) the product stage describes the prevention strategies that are developed and utilized by grantees; (3) the process stage assesses progress on key activities and milestones related to implementation of program plans; and (4) the impact
To date, 147 State/Tribal cooperative agreement awardees and 153 Campus grantees have participated in the cross-site evaluation since FY 2005. Currently, 61 State/Tribal cooperative agreement awardees and 60 Campus grantees are participating in the cross-site evaluation. Data will continue to be collected from suicide prevention program staff (e.g., project directors, evaluators), key program stakeholders (e.g., state/local officials, child-serving agency directors, gatekeepers, mental health providers, and campus administrators), training participants, college students, and campus faculty/staff through FY2016.
Since the State/Tribal grantees differ from the Campus grantees in programmatic approaches, specific data collection activities also vary by type of program. The following describes the specific data collection activities and data collection instruments to be used across State/Tribal and Campus grantees for the cross-site evaluation. While most of the data collection instruments described below are revised versions of instruments that have previously received Office of Management and Budget approval (OMB No. 0930–0286 with Expiration Date: August 2013) and are currently in use, new instruments include:
The addition of these new data collection activities does not increase the burden associated with the cross-site evaluation because several lengthy instruments, as well as campus case studies, have been removed from the data collection protocol. A summary table of the number of respondents and respondent burden has also been included.
Previously approved instruments that have been removed include:
For State/Tribal grantees, the Prevention Strategies Inventory State/Tribal (PSI–ST) Baseline and Follow-up, Referral Network Survey (RNS), and the Training Utilization and Preservation—Survey (TUP–S–ST): State/Tribal Version described below are revised versions of instruments that previously received OMB approval (OMB No. 0930–0286 with Expiration Date: August 2013) and are currently in use. The Training Activity Summary Page State/Tribal (TASP–ST), Early Identification, Referral and Follow-up Screening Form (EIRF–S) and the Early Identification, Referral and Follow-up Analysis (EIRF) are data collection activities that utilize existing data sources. The Training Utilization and Preservation Survey (TUP–S): 6-Month Follow-up and Adolescent Versions, the Coalition Profile, and the Coalition Survey are proposed as new data collection instruments.
The target population of TUP–S instruments is participants in GLS sponsored trainings. The different versions of the instrument target distinct strata within that population. The State/Tribal 3-Month Follow-up TUP–S and the 6-Month Follow-up TUP–S will target adults (18 and older) who participated in State/Tribal sponsored trainings (about 900 per grantee in FY 2012). All adult participants of GLS sponsored trainings will be administered a consent-to-contact form by the training facilitator or grantee staff during a training event. Respondents to the State/Tribal TUP–S will be asked to consent to be contacted for a second time (in 3 months).
The cross-site evaluation team will select a probabilistic sample of participants who consent to be contacted on an ongoing basis, as trainings are implemented and consents received, using systematic sampling. The sample fraction will be determined and updated yearly based on the projected number of consents so as to ensure the target sample sizes per year. Changes in the sample fraction will alter inclusion probabilities and must be taken into account in the analysis across years through the use of sampling weights.
Target sample sizes were determined so as to afford small standard errors for the estimates of the quantities of interest in a given year considering available resources. In addition, the sample size for each version is roughly proportional to the size of the stratum they represent in FY 2012. Key survey estimates will take the form of the percentage or proportions, such as the proportion of trainees who identified a youth at risk for suicide during the 3 months after the training. In the case of the TUP–S 6-Month Follow-up, the main interest is the change between administrations in these proportions of interest. Results are presented for the maximum standard errors, i.e., for a proportion close to 50%—in which the variance is the largest—and for no correlation over time in the case of the TUP–S 6-month follow-up.
An average of 2,000 participants per year will be sampled for completion of the 3-Month Follow-up Version. The 6-Month Follow-up Version will sample 200 participants the first year and will increase to 600 participants in subsequent years. The two versions of the TUP–S include 25 items each and will take approximately 10 minutes to complete.
The Adolescent TUP–S will target adolescents (12 to 17) who participated in State and Tribal sponsored trainings (approximately 170 per grantee in FY 2012). Consent to contact for the Adolescent TUP–S will be obtained from parent/guardians by training facilitators and/or grantee staff in conjunction with the consent to participate in the training itself.
The cross-site evaluation team will select a probabilistic sample of participants who consent to be contacted on an ongoing basis, as trainings are implemented and consents received, using systematic sampling. The sample fraction will be determined and updated yearly based on the projected number of consents so as to ensure the target sample sizes per year. Changes in the sample fraction will alter inclusion probabilities and must be taken into account in the analysis across years through the use of sampling weights.
Target sample sizes were determined so as to afford small standard errors for the estimates of the quantities of interest in a given year considering available resources. In addition, the sample size for the Adolescent Version is roughly proportional to the size of the stratum it represents in FY 2012.
Key survey estimates will take the form of the percentage or proportions, such as the proportion of trainees who identified a youth at risk for suicide during the 3 months after the training.
An average of 100 respondents will be sampled during the pilot year; they will increase to 400 participants in subsequent years. The Adolescent Version of the TUP–S will take approximately 10 minutes to complete.
Wave 1—grantee identifies one respondent.
Wave 2—1 agency provides 3 respondents.
Wave 3—3 agencies each can provide 3 more respondents.
Wave 4—9 agencies can each provide 3 respondents.
If the participant agrees to participate in the survey during the initial phone call, respondents will be asked to provide a current email address. Once the referral network has been established, respondents will be sent an online survey. This online survey will be prefilled with the entire list of the network so respondents may select which organizations are in their direct referral network.
The RNS will be administered to referral networks in years 1 and 3 of the grant. On average, 1467 respondents per year will complete the RNS. Questions on the RNS are multiple-choice, Likert-scale, and open-ended. The RNS includes 57 items and will take approximately 40 minutes to complete. The RNS has undergone several changes. It has been revised to gather more detail about the type, level, and quality of collaboration between agencies, including barriers, facilitators, and outcomes of the collaboration. The mode of administration for this survey will also be changed from phone to the Web to boost response rates.
Grantees are responsible for compiling these data and submitting to the cross-site evaluation team using the Early Identification, Referral and Follow-up Screening Form. Grantees are required to submit information on a quarterly basis, and it is estimated that abstracting this information will take 60 minutes. The form has been modified to collect the geographical location of screening events.
For Campus grantees, the Prevention Strategies Inventory—Campus Baseline and Follow-up (PSI–C) and the Training Exit Survey—Campus (TES–C), are revised versions of instruments that previously received OMB approval (OMB No. 0930–0286 with Expiration Date: August 2013) and are currently in use. The Training Activity Summary Page Campus (TASP–C) and the MIS Data Collection Activity utilize existing data sources. The Life skills Activity Follow-up Interview (LAI), the Short Message Service Survey (SMSS), the Student Awareness Intercept Survey (SAIS), and the Training Utilization and Preservation—Survey (TUP–S): Campus Version are proposed as new data collection instruments.
Grantees are responsible for aggregating these data and submitting to the cross-site evaluation team using the TASP–C data elements.
Grantees are responsible for aggregating these data and submitting to the cross-site evaluation team using the TASP–C on a quarterly basis. The TASP has been revised to collect information about the settings of trainings and the training goal, as well as the follow-up plans of grantees. It is estimated that abstracting this information will take 20 minutes.
The target sample size was determined so as to afford small standard errors for the estimates of the quantities of interest in a given year considering available resources. In addition, the sample size for the Campus version is roughly proportional to the size of the stratum they represent in FY 2012. Key survey estimates will take the form of the percentage or proportions, such as the proportion of trainees who identified a youth at risk for suicide during the 3 months after the training.
This version of the TUP–S will be piloted for 1 year. During the first pilot year, 100 respondents will participate. On average, in subsequent years, 500 respondents will participate in the TUP–S: Campus Version. This instrument includes 25 items and will take approximately 10 minutes to complete.
This instrument will be administered to up to 7 trainees from up to 5 selected campus trainings per year, for a total of up to 35 respondents per year. The LAI will take approximately 30 minutes to complete.
Respondents for the SAIS will represent a sample of the student population at up to four selected campuses. Campuses implementing targeted suicide prevention campaigns will be identified and selected by reviewing grant applications and through technical assistance activities. A sampling plan to obtain 400 student respondents at up to four participating campuses will be developed by the cross-site evaluation team in conjunction with the campus project team using geographical and temporal sampling frames of student activity. Working with the campus grantee, the evaluation team will recruit respondents utilizing a systematic process that randomly selects campus locations and times. For the follow-up administration, the same sample size will be targeted. However, that sample will result from a combination of follow-up interviews with students from the initial sample, in combination with students newly recruited through an intercept procedure similar to the procedure. The SAIS will collect information about: exposure to suicide prevention outreach and awareness initiatives with targeted student populations; awareness of appropriate crisis interventions, supports, services, and resources for mental health seeking; knowledge of myths and facts related to suicide and suicide prevention; and attitudes toward mental health seeking, access, and utilization of mental health services on campus. A follow-up version of the survey will be administered 3 months after baseline. On average, 1,600 students per year will participate in the SAIS, which takes approximately 60 minutes to complete.
Internet-based technology will continue to be used for collecting data via Web-based surveys, and for data entry and management. The average annual respondent burden is estimated below.
The estimate reflects the average annual number of respondents, the average annual number of responses, the time it will take for each response, and the average annual burden. While the different cohorts of grantees finish their grants at different times, it is assumed that new cohorts will replace previous cohorts. Therefore, the number of grantees in each year is assumed to be constant.
Written comments and recommendations concerning the proposed information collection should be sent by September 16, 2013 to the SAMHSA Desk Officer at the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB). To ensure timely receipt of comments, and to avoid potential delays in OMB's receipt and processing of mail sent through the U.S. Postal Service, commenters are encouraged to submit their comments to OMB via email to:
National Protection and Programs Directorate, DHS.
60-day notice and request for comments; New Information Collection Request: 1670–0017.
The Department of Homeland Security (DHS), National Protection and Programs Directorate (NPPD), Office of Cybersecurity and Communications (CS&C), Office of Emergency Communications (OEC), will submit the following Information Collection Request to the Office of Management and Budget (OMB) for review and
Comments are encouraged and will be accepted until October 15, 2013. This process is conducted in accordance with 5 CFR 1320.1.
Written comments and questions about this Information Collection Request should be forwarded to DHS/NPPD/CS&C/OEC, 245 Murray Lane SW., Mail Stop 0640, Arlington, VA 20598–0640. Emailed requests should go to Serena Maxey,
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The Department of Homeland Security, Office of Emergency Communications (OEC), formed under Title XVIII of the Homeland Security Act of 2002, 6 U.S.C. 571 et seq., is required, pursuant to 6 U.S.C. 572, to develop the National Emergency Communications Plan (NECP), which includes identification of goals, timeframes, and appropriate measures to achieve interoperable communications capabilities. In 2010, the Statewide Communication Interoperability Plan (SCIP) Implementation Report was cleared in accordance with the Paperwork Reduction Act of 1995 and will expire in September of 2013. The SCIP Template and Annual Progress Report will replace the previous SCIP Template and SCIP Implementation Report. These updated documents (SCIP Template and Annual Progress Report) streamline the information collected by OEC to track the progress states are making in implementing milestones and demonstrating goals of the NECP. The process for completing the SCIP Template and Annual Progress Report will not change.
The SCIP Template and Annual Progress Report will assist states in their strategic planning for interoperable and emergency communications while demonstrating each state's achievements and challenges in accomplishing optimal interoperability for emergency responders. In addition, certain government grants may require states to update their SCIP Templates and Annual Progress Reports to include broadband efforts in order to receive funding for interoperable and emergency communications. Statewide Interoperability Coordinators (SWICs) will be responsible for the development and incorporation of input from their respective stakeholders and governance bodies into their SCIP Template and Annual Progress Report. SWICs will complete and submit the reports directly to OEC through unclassified electronic submission.
OMB is particularly interested in comments that:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
Transportation Security Administration, DHS.
60-day Notice.
The Transportation Security Administration (TSA) invites public comment on one currently approved Information Collection Request (ICR), Office of Management and Budget (OMB) control number 1652–0042, abstracted below that we will submit to OMB for renewal in compliance with the Paperwork Reduction Act (PRA). The ICR describes the nature of the information collection and its expected burden. The collection involves TSA determining whether the party or representative of a party seeking access to sensitive security information (SSI) in a civil proceeding in federal court may be granted access to the SSI.
Send your comments by October 15, 2013.
Comments may be emailed to
Susan L. Perkins at the above address, or by telephone (571) 227–3398.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid OMB control number. The ICR documentation is available at
(1) Evaluate whether the proposed information requirement is necessary for
(2) Evaluate the accuracy of the agency's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
In order to determine if the individual may be granted access to SSI for this purpose, TSA will conduct a threat assessment that includes: (1) A fingerprint-based criminal history records check (CHRC), (2) a name-based check to determine whether the individual poses or is suspected of posing a threat to transportation or national security, including checks against terrorism, immigration, or other databases TSA maintains or uses; and (3) a professional responsibility check (for attorneys and court reporters).
TSA will use the information collected to conduct the security threat assessment for the purpose of determining whether the provision of such access to the information for the proceeding presents a risk of harm to the Nation. The results of the security threat assessment will be used to make a final determination on whether the individual may be granted access to the SSI at issue in the case. TSA estimates that the total annual hour burden for this collection will be 120 hours, based on an estimated 120 annual respondents and a one-hour burden per respondent.
Transportation Security Administration, DHS.
60-day Notice.
The Transportation Security Administration (TSA) invites public comment on one currently approved Information Collection Request (ICR), Office of Management and Budget (OMB) control number 1652–0055, abstracted below that we will submit to OMB for renewal in compliance with the Paperwork Reduction Act (PRA). The ICR describes the nature of the information collection and its expected burden. Specifically, the collection involves the submission of contact information for a pipeline company's primary and alternate security manager and the telephone number of the security operations or control center, as well as data concerning pipeline security incidents.
Send your comments by October 15, 2013.
Comments may be emailed to
Susan L. Perkins at the above address, or by telephone (571) 227–3398.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
In executing its responsibility for modal security, TSA produced the Pipeline Security Guidelines in December 2010 following extensive consultation with its government and industry partners (the document was updated and re-issued in April 2011 following implementation of the National Terrorism Advisory System). Participants in this discussion included industry and government members of the Pipeline Sector and Government Coordinating Councils, industry association representatives, and other interested parties. These primary Federal guidelines for pipeline security include recommendations for the voluntary submission of pipeline operator security manager contact information to TSA and the reporting of security incident data to the Transportation Security Operation Center (TSOC).
The Pipeline Security Guidelines recommend that each operator provide TSA with the 24/7 contact information of the company's primary and alternate
As the lead Federal agency for pipeline security, TSA desires to be notified of all incidents which are indicative of a deliberate attempt to disrupt pipeline operations or activities that could be precursors to such an attempt. The Pipeline Security Guidelines request pipeline operators notify the Transportation Security Operation Center (TSOC) via phone at 866–615–5150 or email at
• Explosions or fires of a suspicious nature affecting pipeline systems, facilities, or assets;
• Actual or suspected attacks on pipeline systems, facilities, or assets;
• Bomb threats or weapons of mass destruction (WMD) threats to pipeline systems, facilities, or assets;
• Theft of pipeline company vehicles, uniforms, or employee credentials;
• Suspicious persons or vehicles around pipeline systems, facilities, assets, or right-of-way;
• Suspicious photography or possible surveillance of pipeline systems, facilities, or assets;
• Suspicious phone calls from people asking about the vulnerabilities or security practices of a pipeline system, facility, or asset operation;
• Suspicious individuals applying for security-sensitive positions in the pipeline company;
• Theft or loss of Sensitive Security Information (SSI) (detailed pipeline maps, security plans, etc.); and
• Actual or suspected cyber-attacks that could impact pipeline Supervisory Control and Data Acquisition (SCADA) or enterprise associated IT systems.
When contacting the TSOC, the Guidelines request pipeline operators provide as much of the following information as possible:
• Name and contact information (email address, telephone number);
• The time and location of the incident, as specifically as possible;
• A description of the incident or activity involved;
• Who has been notified and what actions have been taken; and
• The names and/or descriptions of persons involved or suspicious parties and license plates as appropriate.
There are approximately 3,000 pipeline companies in the United States. TSA estimates that pipeline operators will require a maximum of 15 minutes to collect, review, and submit primary/alternate security manager and security operations or control center contact information by telephone or email. Assuming voluntary submission of the requested information by all operators, the potential burden to the public is estimated to be a maximum of 750 hours (3,000 companies × 15 minutes = 750 hours). Turnover of security personnel would necessitate changes to previously-submitted contact information on an as-occurring basis. Assuming an annual employee turnover rate of 10 percent, the potential burden to the public is estimated to be a maximum of 75 hours (3,000 companies × 10 percent turnover = 300 updates; 300 updates × 15 minutes = 75 hours).
TSA expects reporting of pipeline security incidents will occur on an irregular basis. TSA estimates that approximately 40 incidents will be reported annually, requiring a maximum of 30 minutes to collect, review, and submit event information. The potential burden to the public is estimated to be 20 hours. (40 incidents × 30 minutes = 20 hours)
The renewal of this information collection will allow TSA to continue using the operator contact information to provide security-related information to company security managers and/or the security operations or control center. Additionally, TSA may use operator contact information to solicit additional information following a pipeline security incident. TSA will use the security incident information provided by operators for vulnerability identification and analysis and trend analysis.
Since the 2011 issuance of the Pipeline Security Guidelines, reports of security incidents in the pipeline industry have been routinely used by the TSA to analyze trends in suspicious activities. This analysis is incorporated into TSA's annual pipeline modal threat assessment. TSA may also include incident information, in redacted form, in additional intelligence reports produced by TSA relevant to transportation security. TSA recognizes that the criteria for evaluating an activity as suspicious may vary from company to company. Nevertheless, the submission of information regarding events that may indicate pre-operational activities is of considerable value for threat analysis. To the extent that incident information provided by pipeline operators is SSI, it will be protected in accordance with procedures meeting the transmission, handling, and storage requirements of SSI set forth in 49 CFR parts 15 and 1520.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for possible use to assist the homeless.
Juanita Perry, Department of Housing and Urban Development, 451 Seventh Street SW., Room 7262, Washington, DC 20410; telephone (202) 402–3970; TTY number for the hearing- and speech-impaired (202) 708–2565, (these telephone numbers are not toll-free), or call the toll-free Title V information line at 800–927–7588.
In accordance with the December 12, 1988 court order in
Department of the Interior.
Notice; reopening of comment period.
This notice announces a reopening of the public comment period on the proposed categorical exclusion under the National Environmental Policy Act (NEPA) for the U.S. Fish and Wildlife Service. The proposed categorical exclusion pertains to adding species to the injurious wildlife list under the Lacey Act. The addition of this categorical exclusion to the Department of the Interior's Departmental Manual will improve conservation activities by making the NEPA process for listing injurious species more efficient. If you have previously submitted comments, please do not resubmit them because we have already incorporated them in the public record and will fully consider them in our final decision.
We will consider comments we receive on or before October 15, 2013.
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Susan Jewell, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Arlington, VA 22203; telephone 703–358–2416. If you use a telecommunications device for the deaf, please call the Federal Information Relay Service at 800–877–8339.
On July 1, 2103, the Department of the Interior published a notice in the
Any comments to be considered on this proposed addition to the list of categorical exclusions in the Departmental Manual must be received by the date listed in
In notice document 2013–19416 appearing on pages 48890 through 48893 in the issue of Monday, August 12, 2013, beginning on page 48892, BSEE form BSEE–0130 is corrected to appear as photographed below.
Fish and Wildlife Service, Interior.
Notice of availability; request for public comment.
We, the U.S. Fish and Wildlife Service (Service), announce the availability of a draft environmental impact statement (EIS) for a proposed project to eradicate non-native, invasive house mice from the South Farallon Islands, part of the Farallon National Wildlife Refuge off the coast of California. The draft EIS, which we prepared in accordance with the National Environmental Policy Act of 1969 (NEPA), describes the alternatives identified to address the problem of invasive house mice on the South Farallon Islands.
We will accept comments received or postmarked on or before September 30, 2013. Comments submitted electronically using the Federal eRulemaking Portal (see
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○ San Francisco Bay National Wildlife Refuge Complex Headquarters, 1 Marshlands Road, Fremont, CA 94555.
○ The following library:
San Francisco Public Library, 100 Larkin Street, San Francisco, CA 94102.
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We request that you send comments only by the methods described above. We will post all information received on
Gerry McChesney, Refuge Manager, 510–792–0222, ext. 222 (phone).
In 2009, the Service completed a Comprehensive Conservation Plan (CCP) and Environmental Assessment/Finding of No Significant Impact to guide the management of the Farallon National Wildlife Refuge (Refuge) over a 15-year period (75 FR 5102, February 1, 2010). The wildlife management goal of the selected management alternative in the CCP is to protect, inventory, and monitor, as well as to restore to historic levels, breeding populations of 12 seabird species, 5 marine mammal species, and other native wildlife. One of the strategies identified to meet this goal is the eradication of the non-native, invasive house mouse (
We now propose to eradicate invasive house mice from the South Farallon Islands. The purpose of this project is to benefit native seabirds, amphibians, invertebrates, and plants, as well as to enhance ecosystem processes on the islands. The South Farallon Islands have sustained ecological damage over many decades from the presence of invasive mice. Eradicating house mice would eliminate the last remaining invasive vertebrate species on the Refuge, thereby enhancing the recovery of sensitive seabird populations on the islands.
In 1909, President Theodore Roosevelt established the Farallon National Wildlife Refuge (Refuge) as a preserve and breeding ground for marine birds under Executive Order 1043. The Refuge originally encompassed only the North and Middle Farallon Islands and Noonday Rock. In 1969 the Refuge was expanded to include the South Farallon Islands, and is still managed with the same basic purpose today. Several areas are designated wilderness as regulated by the Wilderness Act of 1964 (PL 88–577). Wilderness areas include all islands and islets in the Refuge except for Southeast Farallon Island. The isolated nature, varied and extensive habitats, and adjacent productive marine environment make the Farallon Islands an ideal breeding and resting location for wildlife, especially seabirds and marine mammals. The Refuge comprises the largest continental U.S. seabird breeding colony south of Alaska, and supports the world's largest breeding colonies of ashy storm-petrel (
Invasive house mice directly and indirectly cause negative impacts to the populations of small, crevice-nesting seabirds on the South Farallones, particularly storm-petrels. In order to reduce this impact, the Service has identified mouse eradication as a critical step in fulfilling its main purpose to protect and restore the native ecosystem of the South Farallon Islands. Eradicating mice would increase the survivorship and local population sizes of at least two seabird species, the ashy storm-petrel and Leach's storm-petrel (
In 2011, we published a notice of intent (NOI) to prepare an EIS (76 FR 20706, April 13, 2011). We then developed a range of alternatives to focus on the primary issues identified by resource specialists within the Service, national and international experts in island rodent eradication, public comments received after the NOI to prepare the EIS was released, and government regulatory agencies that have a stake in the decision-making process. To decide which action alternatives to fully analyze in the Draft EIS, we used a structured decision-making approach, by which we assessed and compared a total of 49 potential mouse-removal methods. The
Under this alternative, we would not take any action to eradicate mice from the South Farallon Islands, maintaining the status quo. Native species would continue to be impacted by invasive mice. However, other ongoing invasive species management programs on the South Farallones would continue based on previous agency decisions. Low-intensity mouse control, primarily snap-trapping, currently occurs within and around the residences and other buildings on Southeast Farallon Island. These localized control efforts would continue under the no-action alternative, but the mouse population on the rest of the South Farallones would not be subject to control efforts.
Under this alternative, we would also continue management activities focused on protecting storm-petrels and their habitat on the islands, including invasive plant control and nest habitat construction. The current biosecurity measures would likely continue under this alternative, which could leave the Farallones at risk of additional invasions by non-native animal species.
Under this alternative, the project area would be treated with the rodenticide Brodifacoum 25D Conservation. The primary delivery of the bait would be through two aerial applications, with hand baiting and bait stations as a secondary means of bait delivery in selected areas. Bait applications would be separated by 10 to 21 days. The applications would take place between October and December. A comprehensive gull hazing program would be implemented as part of the action to minimize the exposure of gulls to bait. Mitigation measures in this alternative include minimizing activities in wilderness areas, protecting cultural resources, minimizing wildlife disturbances, minimizing bait drift into the marine environment, raptor capture and hold/relocation, use of bait stations in certain areas with high numbers of roosting gulls, and the removal of carcasses of mice and non-target species, and covering the water catchment pad.
Monitoring of operational, mitigation, and ecosystem restoration objectives would be conducted before, during, and after the proposed mouse eradication. In addition, in order to mitigate the risk of future rodent reinvasion, a biosecurity plan would be implemented prior to the proposed eradication to prevent and detect future rodent incursions.
Under this alternative, the project area would be treated with the rodenticide Diphacinone D50-Conservation. Alternative 3 differs from Alternative 2 in the type of rodenticide used for the proposed eradication and the number of applications that may be necessary. A comprehensive gull hazing program would be implemented to minimize the exposure of gulls to bait. Alternative 3 would include the same mitigation measures described under Alternative 2, as well as the monitoring program and the biosecurity plan. Under Alternative 3, Diphacinone D50-Conservation would be broadcast primarily by helicopter, with some hand baiting and bait stations used in selected areas. However, under Alternative 3 we would need to broadcast a portion of the total amount of bait required during up to three or four applications, each separated by approximately 7 days. The number of applications will be determined partly by mouse uptake of bait and degradation of bait by rainfall. The bait application would take place between October and December.
We are conducting environmental review in accordance with the requirements of NEPA, as amended (42 U.S.C. 4321 et seq.), its implementing regulations (40 CFR parts 1500–1508), other applicable regulations, and our procedures for compliance with those regulations. The draft EIS discusses the direct, indirect, and cumulative impacts of the alternatives on biological resources, cultural resources, wilderness, water quality, and other environmental resources. Measures to minimize adverse environmental effects are identified and discussed in the draft EIS.
We request that you send comments only by one of the methods described in
We will hold one public meeting to solicit comments on the draft EIS. We will mail a separate announcement to the public with the exact date, time, and location of the public meeting. We will also post the time, date, and location of the public meeting on our refuge Web site at:
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
We, the U.S. Fish and Wildlife Service, invite the public to comment on the following applications to conduct certain activities with endangered species, marine mammals, or both. With some exceptions, the Endangered Species Act (ESA) and [Marine Mammal Protection Act (MMPA) prohibit activities with listed species unless Federal authorization is acquired that allows such activities.
We must receive comments or requests for documents on or before September 16, 2013. We must receive requests for marine mammal permit public hearings, in writing, at the address shown in the
Brenda Tapia, Division of Management Authority, U.S. Fish and Wildlife Service, 4401 North Fairfax
Brenda Tapia, (703) 358–2104 (telephone); (703) 358–2280 (fax);
Send your request for copies of applications or comments and materials concerning any of the applications to the contact listed under
Please make your requests or comments as specific as possible. Please confine your comments to issues for which we seek comments in this notice, and explain the basis for your comments. Include sufficient information with your comments to allow us to authenticate any scientific or commercial data you include.
The comments and recommendations that will be most useful and likely to influence agency decisions are: (1) Those supported by quantitative information or studies; and (2) Those that include citations to, and analyses of, the applicable laws and regulations. We will not consider or include in our administrative record comments we receive after the close of the comment period (see
Comments, including names and street addresses of respondents, will be available for public review at the street address listed under
To help us carry out our conservation responsibilities for affected species, and in consideration of section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The applicant requests amendment and renewal of the permit to import biological specimens collected from nesting female and hatchling hawksbill sea turtles (
The applicant requests a permit to re-import a live female African elephant (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the radiated tortoise (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for barasingha (
The applicant requests a permit authorizing interstate and foreign commerce, export, and cull of excess barasingha (
The applicant requests renewal of their captive-bred wildlife registration under 50 CFR 17.21(g) for the following species in the Cebidae family—Cotton-top tamarin (
The applicant requests renewal of their captive-bred wildlife registration under 50 CFR 17.21(g) for spotted pond turtle (
The applicant requests a permit to import a captive-bred Malayan tapir (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for barasingha (
The applicant requests a permit authorizing interstate and foreign commerce, export, and cull of excess addax (
The applicant requests renewal of their captive-bred wildlife registration under 50 CFR 17.21(g) for the following families to enhance their propagation or survival. This notification covers activities to be conducted by the applicant over a 5-year period.
The following applicants each request a permit to import the sport-hunted trophy of one male bontebok (
The applicant requests a permit to conduct population surveys which could cause Level B harassment of northern sea otters (
Concurrent with publishing this notice in the
U.S. Geological Survey, Interior.
Meeting notice.
In accordance with the requirements of the Federal Advisory Committee Act, 5 U.S.C. App. 2, we announce that the Advisory Committee on Climate Change and Natural Resource Science will hold a meeting.
Hall of the States Building, 444 North Capitol Street NW., Washington, DC 20001, Room 283/285.
Mr. Robin O'Malley, Designated Federal Officer, Policy and Partnership Coordinator, National Climate Change and Wildlife Science Center, U.S. Geological Survey, 12201 Sunrise Valley Drive, Mail Stop 400, Reston, VA 20192,
Chartered in May 2013, the Advisory Committee on Climate Change and Natural Resource Science (ACCCNRS) advises the Secretary of the Interior on the establishment and operations of the U.S. Geological Survey (USGS) National Climate Change and Wildlife Science Center (NCCWSC) and the Department of the Interior (DOI) Climate Science Centers (CSCs). ACCCNRS members represent federal agencies; tribal, state, and local governments; nongovernment organizations; academic institutions; and the private sector. Duties of the committee include: (A) Advising on the contents of a national strategy identifying key science priorities to advance the management of natural resources in the face of climate change; (B) advising on the nature, extent, and quality of relations with and engagement of key partners at the regional/CSC level; (C) advising on the nature and effectiveness of mechanisms to ensure the identification of key priorities from management partners and to effectively deliver scientific results in useful forms; (D) advising on mechanisms that may be employed by the NCCWSC to ensure high standards of scientific quality and integrity in its products, and to review and evaluate the performance of individual CSCs, in advance of opportunities to re-establish expiring agreements; and (E) coordinating as appropriate with any Federal Advisory Committee established for the DOI Landscape Conservation Cooperatives. More information about the ACCCNRS is available at
Individuals or groups requesting to make comment at the public Committee meeting will be limited to 2 minutes per speaker. The Committee will endeavor to provide adequate opportunity for all speakers, within available time limits. Speakers who wish to expand upon their oral statements, or those who had wished to speak, but could not be accommodated during the public comment period, are encouraged to submit their comments in written form to the Committee after the meeting.
Written comments should be submitted, prior to, during, or after the meeting, to Mr. Robin O'Malley, Designated Federal Officer, by U.S. Mail to: Mr. Robin O'Malley, Designated Federal Officer, U.S. Geological Survey, 12201 Sunrise Valley Drive, Mail Stop 400, Reston, VA 20192, or via email, at
The meeting location is open to the public, and current, government issued, photo ID is required to enter. Space is limited, so all interested in attending should pre-register. Please submit your name, time of arrival, email address and phone number to Mr. Robin O'Malley via email at
Bureau of Land Management, Interior.
Notice.
The Bureau of Land Management's (BLM) Colorado State Office will accept competitive bids to select a preferred applicant to submit a right-of-way (ROW) application and a plan of development for solar energy projects on approximately 3,705 acres of public land in Saguache and Conejos Counties in Colorado.
The BLM will hold an oral auction at the BLM's Colorado State Office on October 24, 2013. Prior to the oral auction, sealed bids will be accepted and will be carried to the oral auction. Sealed bids must be received, not postmarked, by the BLM Colorado State Office to the address listed below on or before October 15, 2013. The oral auction will begin at 10 a.m., opening with the minimum bonus bid or the highest sealed bid over the minimum bonus bid, whichever is higher. Bidder registration begins at 9 a.m. In order to bid, you must provide the bidder's name and personal or business address. Each bid can only contain the name of one bidder (
Sealed bids, including all required administrative fee deposits and documentation must be submitted to the Bureau of Land Management, Attention: Maryanne Kurtinaitis, CO923, 2850 Youngfield Street, Lakewood, CO 80215. Electronic bid submissions will not be accepted. The BLM will hold the oral auction at the address listed above.
Maryanne Kurtinaitis, Renewable Energy Program Manager, by telephone at 303–239–3708 or by email at
BLM Colorado has received several solicitations of interest and ROW applications within two designated Solar Energy Zones (SEZ): Los Mogotes East SEZ and De Tilla Gulch SEZ. Applications for solar energy development are processed as ROW authorizations pursuant to Title V of the Federal Land Policy and Management Act. Existing regulations authorize the BLM to determine whether competition exists among ROW applications filed for the same facility or system. 43 CFR 2804.23. The regulations also allow the BLM to resolve any such competition by using competitive bidding procedures.
The BLM will use a competitive sealed and oral bid process to select a preferred applicant to submit a ROW application and plan of development for solar energy development in the Los Mogotes East SEZ and the De Tilla Gulch SEZ. The successful high bidder(s) for any of the parcels of public land offered by this notice must be prepared to submit a ROW application (SF–299) and a plan of development, consistent with the requirements of the regulations and within the timeframes specified in this notice. 43 CFR 2804.12 and 2803.10. Bidders may submit bid packages for one or all three parcels of public land described below.
The public lands made available by this notice include one parcel called De Tilla Gulch SEZ, consisting of approximately 1,064 acres of public land within sections 29, 30, 31, 32, and 33 of T. 45 N., R. 9 E., New Mexico Principal Meridian, Saguache County, Colorado. This parcel lies approximately 7 miles east of the town of Saguache, Colorado. The second parcel called Los Mogotes East SEZ (north parcel), consists of approximately 1,281 acres of public land within sections 1 and 12 of T. 34 N., R. 8 E., New Mexico Principal Meridian, Conejos County, Colorado. This parcel lies three miles west of the town of Romeo, Colorado. The third parcel
If you are submitting a sealed bid prior to the oral auction, all bidding documents must be enclosed in a sealed envelope with your name and return address on the outside. Include the following notation on the front lower left hand corner: SEALED BID—DO NOT OPEN. An administrative fee of $48,169 is also required for each parcel for sealed bids and at registration from each bidder for the oral auction in the form of a cashier's or certified check made payable to the “Bureau of Land Management.” A minimum bonus bid has also been determined for each parcel. The minimum bonus bid represents 5 percent of the rent value of the land for 1 year ($63 per acre for Saguache and Conejos counties) under the BLM's interim solar rental policy and is based on the interests acquired by a preferred applicant to file a ROW application in a SEZ. Minimum bonus bids for the three parcels are: De Tilla Gulch—$3,352; Los Mogotes East (north parcel)—$4,035; and Los Mogotes East (south parcel)—$4,284. Bidders must use a bid statement to identify the bonus amount the bidder will pay for the right to submit a ROW application and plan of development. The bonus bid must meet or exceed the minimum bonus bid amount identified above for each parcel. The bid statement format and a complete description of the bid process are contained in an Invitation for Bids package available on the BLM Colorado Web site at:
The high bidder(s) will become the successful bidder(s) and must deposit the bonus bid specified in the bid statement within 10 calendar days of notification by the BLM that they are the successful bidder. Upon the BLM's acceptance of the bonus bid specified in the bid statement, the successful bidder will become the preferred ROW applicant. The required administrative fee of the successful bidder(s) will be retained by the agency to recover administrative costs for conducting the competitive bid process. The bonus bid will be deposited with the U.S. Treasury. Neither amount will be returned or refunded to the successful high bidder(s) under any circumstance. All deposits made by unsuccessful bidders will be returned, without interest, upon the BLM's acceptance of the high bidder's bonus bid.
If there is no bid received for a parcel, then no preferred ROW applicant will be identified and no application will be processed for solar energy development under the procedures listed in this notice. If the BLM is unable to determine the successful bidder, such as in the case of a tie, the BLM may re-offer the lands competitively to the tied bidders, or to all prospective bidders.
The BLM will notify the successful high bidder(s) of the right to submit a ROW application and plan of development within 180 calendar days of the bid closing. Preferred ROW applicants will be required to reimburse the United States for the cost of processing an application consistent with the requirements of the regulations at 43 CFR 2804.14. The fees are based on the amount of time the BLM estimates it will take to process the ROW application and issue a decision. The BLM will begin processing the ROW application once the cost recovery fees are received as required by the regulations.
43 CFR 2804.23.
Bureau of Land Management, Interior.
Notice of Intent.
In accordance with the National Environmental Policy Act of 1969, as amended (NEPA), the Federal Land Policy and Management Act of 1976, as amended, and the Alaska National Lands Interest Conservation Act of 1980 (ANILCA), as amended, the Bureau of Land Management (BLM) Arctic Field Office, Fairbanks, Alaska, intends to prepare a Supplemental Environmental Impact Statement (EIS) for development of petroleum resources in the Greater Mooses Tooth (GMT) Unit, at the proposed GMT1 drilling and production pad. The Supplemental EIS is being prepared for the limited purpose of supplementing the Alpine Satellite Development Plan (ASDP) Final EIS, dated September 2004, regarding the establishment of satellite oil production pads and associated infrastructure within the Alpine field.
Scoping comments may be submitted in writing until September 6, 2013. At this time, the BLM has determined not to hold public scoping meetings. If the BLM determines, after consultation with cooperating agencies, that public scoping meetings are appropriate, the BLM will schedule these meetings and provide appropriate public notice. The BLM will provide additional opportunities for public participation upon publication of the Draft Supplementary EIS, including public meetings and a public comment period. Any Federal, State, local agencies, or tribes that are interested in serving as a cooperating agency for the development of the Supplemental EIS are asked to submit such requests to the BLM by September 6, 2013.
You may submit comments on issues related to the proposed GMT1 Development Project by any of the following methods:
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Documents pertinent to this proposal may be examined at the Fairbanks District Office Public Room, 1150 University Avenue, Fairbanks, AK 99709; and the Alaska State Office Public Room, 222 West 7th Avenue, Anchorage, AK 99513.
Bridget Psarianos, Project Lead; telephone: 907–271–4208; address: 222 West 7th Avenue, Stop #13, Anchorage, AK 99513. Contact Ms. Psarianos if you wish to add your name to our mailing list. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
On July 22, 2013, ConocoPhillips, Alaska, Inc. (CPAI) submitted an application with the BLM for issuance of a right-of-way grant and related authorizations to construct, operate, and maintain a drill site, access road, pipelines, and ancillary facilities to support development of petroleum resources
The purpose of the Supplemental EIS is to evaluate any relevant new circumstances and information which have arisen since the ASDP Final EIS was issued in September 2004, as well as to address any changes to CPAI's proposed development plan for GMT1. The GMT1 project was referred to as CD–6 in the ASDP Final EIS.
New information includes multi-year studies on hydrology, birds, and caribou, a regional climate change assessment for NPR–A, and more information on the material site (potential gravel source). Earlier this year the BLM adopted a new Integrated Activity Plan (IAP) for NPR–A, which contains new protective measures. Additionally, the polar bear has since been listed as threatened under the Endangered Species Act and critical habitat has been proposed. The currently proposed GMT1 Project is very similar to the project approved in the November 2004 Record of Decision for the ASDP Final EIS, with several notable changes, which include: A relocated drill site and reduced road and pipeline length as a result of the drill site relocation; increased length of the Ublutuoch River bridge; reduced Clover material source; an additional 3.3 miles of ancillary pipeline from CD1 to the pipeline tie-in north of CD4; and a redesigned pipeline to provide space for a future pipeline of up to 24-inches in diameter.
At present, the BLM has identified the following preliminary issues for evaluation in the Supplemental EIS: Air quality and climate change impacts; biological resources, including special status species; cultural resources; geology and soils; hydrology and water quality; and reasonably foreseeable future activities, such as a drilling program at proposed GMT2, which was also evaluated as part of the 2004 ASDP EIS.
The BLM will use NEPA public participation processes to assist the agency in satisfying the public involvement requirements under Section 106 of the National Historic Preservation Act (NHPA) (16 U.S.C. 470(f)) pursuant to 36 CFR 800.2(d)(3). The information about historic and cultural resources within the area potentially affected by the proposed action will assist the BLM in identifying and evaluating impacts to such resources in the context of both NEPA and Section 106 of the NHPA.
The BLM will consult with Federally Recognized Indian tribes on a government-to-government basis in accordance with Executive Order 13175 and other policies. Tribal concerns, including impacts on Indian trust assets and potential impacts to cultural resources, will be given due consideration. Federal, State, and local agencies, and tribes that may be interested in or affected by the proposed action that the BLM is evaluating, are invited to participate in the development of the environmental analysis as a cooperating agency.
40 CFR 1502.9, 43 CFR part 2880.
Bureau of Land Management, Interior.
Notice of Availability.
In accordance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy and Management Act of 1976, as amended, the Bureau of Land Management (BLM) has prepared a Northwest Colorado Greater Sage-Grouse Draft Resource Management Plan (RMP) Amendment and Draft Environmental Impact Statement (EIS) for the Northwest Colorado District (NWD) and by this notice is announcing the opening of the comment period.
To ensure that comments will be considered, the BLM must receive written comments on the Draft RMP Amendment/Draft EIS within 90 days following the date the Environmental Protection Agency publishes notice of the Draft RMP Amendment/Draft EIS in the
You may submit comments related to the Northwest Colorado Greater Sage-Grouse Draft RMP Amendment/Draft EIS by any of the following methods:
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Copies of the NWD Greater Sage-Grouse Draft RMP Amendment/Draft EIS are available at the NWD Office at the above address or on the Web site at:
Erin Jones, NWD NEPA Coordinator, telephone 970–244–3008; see address above; email
The BLM prepared the Northwest Colorado Greater Sage-Grouse Draft RMP Amendment and Draft EIS to address a range of alternatives focused on specific conservation measures across the Northwest Colorado range of the Greater Sage-Grouse (GRSG). This Draft RMP Amendment/Draft EIS is one of 15 separate planning efforts that are being undertaken as part of the BLM's and U.S. Forest Service's National Greater Sage-Grouse Planning Strategy. The Draft RMP Amendment/Draft EIS proposes to amend the RMPs for the Colorado River Valley, Grand Junction, Kremmling, Little Snake, and White River field offices, as well as the Land and Resource Management Plan (LRMP) for the Routt National Forest. The current management decisions for resources are described in the following RMPs/LRMPs:
The planning area includes approximately 8 million acres of BLM, National Park Service, U.S. Forest Service, U.S. Bureau of Reclamation, State, local, and private lands located in northwestern Colorado, in 10 counties (Eagle, Garfield, Grand, Jackson, Larimer, Mesa, Moffat, Rio Blanco, Routt, and Summit). Within the decision area, the BLM and U.S. Forest Service administer approximately 1.6 million surface acres and 2.7 million acres of Federal oil and gas mineral (subsurface) estate. Surface management decisions made as a result of this Draft RMP Amendment/Draft EIS will apply only to the BLM and U.S. Forest Service-administered lands in the decision area. The decision area is defined as those BLM and U.S. Forest Service-administered lands and Federal mineral estate within three categories of habitat identified by Colorado Parks and Wildlife:
• Preliminary Priority Habitat (PPH)—Areas identified as having the highest conservation value to maintaining sustainable GRSG populations; include breeding, late brood-rearing and winter concentration areas.
• Preliminary General Habitat (PGH)—Areas of seasonal or year-round habitat outside of priority habitat.
• Linkage/Connectivity Habitat—Areas identified as broader regions of connectivity important to facilitate the movement of GRSG and maintain ecological processes.
The formal public scoping process for the RMP Amendment/EIS began on December 9, 2011, with the publication of a Notice of Intent in the
Major issues considered in the Draft RMP Amendment/Draft EIS include special status species management (GRSG specifically), energy development, lands and realty (including transmission), and livestock grazing.
The Draft RMP Amendment/Draft EIS evaluates four alternatives in detail, including the No Action Alternative (Alternative A) and three action alternatives (Alternatives B, C and D). The BLM identified Alternative D as the preferred alternative. Identification of this alternative, however, does not represent final agency direction, and the Proposed RMP Amendment may reflect changes or adjustments based on information received during public comment, from new information, or from changes in BLM policies or priorities. The Proposed RMP may include objectives and actions described in the other analyzed alternatives or otherwise within the spectrum of alternatives analyzed.
Alternative A would retain the current management goals, objectives, and direction specified in the current RMPs for each field office and the LRMP for the Routt National Forest. Alternative B includes conservation measures from the Sage-grouse National Technical Team Report. Alternative C includes conservation measures various conservation groups submitted to the BLM. Alternative D includes conservation measures the BLM developed with the cooperating agencies.
Pursuant to 43 CFR 1610.7–2(b), this notice announces a concurrent public comment period on proposed Areas of Critical Environmental Concern (ACEC). One ACEC is proposed in Alternative C. The Sage-grouse Habitat ACEC (approximately 910,000 acres) would include the following resource use limitations if it were formally designated:
Close to fluid mineral leasing; designate as a Right-of-Way exclusion area; close to livestock grazing; allow vegetation treatments only for the benefit of GRSG; and recommend for withdrawal from mineral entry.
Please note that public comments and information submitted including names, street addresses and email addresses of persons who submit comments will be available for public review and disclosure at the above address during regular business hours (8 a.m. to 4 p.m.), Monday through Friday, except holidays.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
40 CFR 1506.6, 40 CFR 1506.10, 43 CFR 1610.2.
Bureau of Land Management, Interior.
Notice of Meeting/Conference.
In accordance with the Federal Land Policy and Management Act (FLPMA) and the Federal Advisory Committee Act of 1972 (FACA), the Department of the Interior, Bureau of Land Management (BLM), Grand Staircase-Escalante National Monument (GSENM) Monument Advisory Committee (MAC) will host a meeting/conference call.
The GSENM MAC will host a meeting/conference call on Tuesday,
Those attending in person should meet at the GSENM Headquarters, 669 South Highway 89A, Kanab, Utah, in the Cottonwood Conference Room located off the lobby.
Public participants wishing to listen to the conference call, orally present material during the teleconference, or submit written material for the GSENM MAC to consider during the teleconference should notify Larry Crutchfield, Public Affairs Officer, Grand Staircase-Escalante National Monument, 669 South Highway 89A, Kanab, Utah 84741; phone (435) 644–1209; or email
The 15-member GSENM MAC was appointed by the Secretary of the Interior on August 2, 2011, pursuant to the Monument Management Plan (MMP), FLPMA, and the Federal Advisory Committee Act of 1972. As specified in the MMP, the GSENM MAC has several primary tasks: (1) Review evaluation reports produced by the Management Science Team and make recommendations on protocols and projects to meet overall objectives; (2) Review appropriate research proposals and make recommendations on project necessity and validity; (3) Make recommendations regarding allocation of research funds through review of research and project proposals as well as needs identified through the evaluation process above; and, (4) Could be consulted on issues such as protocols for specific projects.
Topics to be discussed by the GSENM MAC during this meeting/conference call include review of the GSENM Campground and Day Use Business Plan, formulation of a land health subcommittee to assist with the development of the MMP amendment, future meeting dates and other matters as may reasonably come before the GSENM MAC. A public comment period will take place immediately following the business meeting. The meeting is open to the public; however, transportation, lodging, and meals are the responsibility of the participating public. The conference call will be recorded for purposes of minute-taking.
43 CFR 1784.4–1.
Bureau of Land Management, Interior.
Notice of intent.
In compliance with the National Environmental Policy Act of 1969 (NEPA), as amended, and the Federal Land Policy and Management Act of 1976 (FLPMA), as amended, the Bureau of Land Management (BLM) intends to extend the scoping period for an additional 30 days for the ongoing Rock Springs RMP, which was initiated on February 2, 2011, to address wild horse and burro management in the Rock Springs Field Office and to amend the 2008 Approved Rawlins RMP for the Adobe Town Herd Management Area in the Rawlins Field Office in Wyoming. The BLM, by this notice, is announcing the beginning of the scoping process to solicit public comments and identify issues that will influence the scope of the environmental analysis, including alternatives, and guide the planning process for wild horse and burro management.
This notice extends the scoping period initiated on February 2, 2011 for wild horse and burro management in the ongoing Rock Springs RMP and associated environmental impact statement (EIS) and initiates the public scoping process for wild horse and burro management for the Adobe Town Herd Management Area (HMA) for the amendment of the 2008 Approved Rawlins RMP.
Comments on issues relating to these two planning efforts may be submitted in writing until September 16, 2013. Two public scoping meetings concerning wild horse and burro management will be held in Rock Springs and Rawlins, Wyoming. The meeting times and addresses will be announced through the local news media, newspapers, and the BLM Web site at
You may submit comments on issues and planning criteria related to the Rock Springs RMP/EIS and an amendment to the Rawlins RMP by any of the following methods:
Documents pertinent to this proposal may be examined at the BLM Rock Springs Field Office, during normal business hours: 7:45 a.m. to 4:30 p.m., Monday through Friday, except holidays.
Jay D'Ewart, Wild Horse and Burro Specialist, at 307–352–0331. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 to speak with Jay D'Ewart during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
On June 27, 2011, the Rock Springs Grazing Association (RSGA) filed a lawsuit (
On April 3, 2013, the United States District Court for the District of Wyoming approved a Consent Decree and Joint Stipulation for Dismissal (Consent Decree) in
You may submit comments on issues and planning criteria in writing to the BLM using one of the methods listed in the
40 CFR 1501.7 and 43 CFR 1610.2.
National Park Service, Interior.
Notice.
The University of Colorado Museum of Natural History, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, has determined that the cultural items listed in this notice meet the definition of sacred objects. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request to the University of Colorado Museum of Natural History. If no additional claimants come forward, transfer of control of the cultural items to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to the University of Colorado Museum of Natural History at the address in this notice by September 16, 2013.
Jen Shannon, Curator of Cultural Anthropology, University of Colorado Museum of Natural History, 218 UCB, Boulder, CO 80309–0218, telephone (303) 492–6276, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items under the control of the University of Colorado Museum of Natural History, Boulder, CO that meet the definition of sacred objects under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
Beginning in 1926, Reverend Harold Case acquired everyday objects as well as traditional, religious, and ceremonial items, through gifts, purchases, and items left for collateral by Mandan, Hidatsa, and Arikara individuals living on and near the Fort Berthold Reservation. In 1983, over 300 items from the Case collection were donated to the University of Colorado Museum of Natural History. After extensive consultation, official representatives of the Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota submitted a repatriation claim for five items. The five sacred objects are pipes. The pipe represented by catalog number 33032 is comprised of a red pipestone bowl with a lead inlay and wood stem, which is decorated with black banding. The pipe represented by catalog number 33035 is comprised of a red pipestone bowl and stem, which are joined by a wooden connector. The pipe represented by catalog number 33043 is comprised of a red pipestone bowl and wood stem. The pipe represented by catalog number 33047 is comprised of a black pipestone bowl and wood stem, which is decorated with red, white and blue quillwork, as well as red and yellow ribbons. The pipe represented by catalog number 33049 is comprised of a black pipestone bowl and wood stem, which is decorated with knobby protrusions and a black amorphous pattern.
The provenance of the pipes supports cultural affiliation to the Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota, which is comprised of Mandan, Hidatsa and Arikara peoples. Historic evidence provided during consultation also supports cultural affiliation with the Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota.
Officials of the University of Colorado Museum of Natural History have determined that:
• Pursuant to 25 U.S.C. 3001(3)(C), the five cultural items described above are specific ceremonial objects needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the sacred objects and the Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Jen Shannon, Curator of Cultural Anthropology, University of Colorado Museum of Natural History, 218 UCB, Boulder, CO 80309–0218, telephone (303) 492–6276, email
The University of Colorado Museum of Natural History is responsible for notifying the Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota that this notice has been published.
National Park Service, Interior.
Notice.
The Washington State Parks and Recreation Commission, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, has determined that the cultural items listed in this notice meet the definition of unassociated funerary objects. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request to the Washington State Parks and Recreation Commission. If no additional claimants come forward, transfer of control of the cultural items to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to the Washington State Parks and Recreation Commission at the address in this notice by September 16, 2013.
Alicia Woods, Washington State Parks and Recreation Commission, PO Box 42650, Olympia, WA 98504–2650, telephone (360) 902–0939, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items under the control of the Washington State Parks and Recreation Commission, Olympia, WA that meet the definition of unassociated funerary objects under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
Between 1950 and 1953, 29 cultural items were removed from the site 45–SP–5 in Spokane County, WA, by Louis R. Caywood with the National Park Service and under a contract with the Washington State Parks and Recreation Commission. At the time of removal, the Washington State Parks and Recreation Commission signed a Memorandum of Agreement releasing custody and control over all excavated material from the site to the Eastern Washington State Historical Society (EWSHS), now known as the Northwest Museum of Arts and Culture. In 1989, the EWSHS de-accessioned the objects, and transferred them to the Washington State Parks and Recreation Commission. The funerary objects listed in this notice were identified in 2005, and were transferred to the Washington State Parks and Recreation Commission headquarters in Olympia, WA. The 29 unassociated funerary objects are 7 pieces of stone and shell; 20 whole and fragmented perforated faunal teeth; 1 perforated seed; and 1 ornamental rifle side plate.
Between 1962 and 1963, nine cultural items were removed from site 45–SP–5 in Spokane County, WA, by John D. Combes with Washington State University (WSU) and under a contract with the Washington State Parks and Recreation Commission. These objects originate from two identified burials and were excavated at the same time as the corresponding human remains, although the human remains are not present in the collection. At the time of removal, the Washington State Parks and Recreation Commission released custody and control over all excavated material to WSU. It is not known when the Washington State Parks and Recreation Commission took custody of the unassociated funerary objects from this site. The funerary objects listed in this notice were identified in 2006, and were transferred to the Washington State Parks and Recreation Commission headquarters in Olympia, WA. The 9 unassociated funerary objects are 1 hammerstone; 2 modified shells; 2 stone tools; 2 stone flakes; and 2 shell fragments.
The site is a burial ground that dates from before 1812 to approximately 1885. Based on the material recovered from a small percentage of the overall number of burials, it would appear the burials are associated with the “immediate pre-contact, fur trade, or post-fur trade periods” (Luttrell, 2011). These dates are supported by first-person accounts of the types and styles of burials during and following the fur trade era (Cox, 1957; Luttrell, 2011; Williams, 1922). All 38 unassociated funerary objects came from the burial ground at site 45–SP–5 and specifically from graves of people who were of Native American ancestry.
The Washington State Parks and Recreation Commission staff has determined there is a relationship of shared group identity between the unassociated funerary objects and the modern day tribes of the Coeur d'Alene Tribe (previously listed as the Coeur d'Alene Tribe of the Coeur d'Alene Reservation, Idaho); Kalispel Indian Community of the Kalispel Reservation; and the Spokane Tribe of the Spokane Reservation. This determination is based on ethnographic evidence that the Upper and Middle Spokane people predominantly resided in the area and utilized the resources of this site in the pre- and post-contact period. Connections between the three groups included intermarriage between the Spokane and Kalispel people and the Spokane and Coeur d'Alene people as well as shared linguistic heritage, overlapping trade networks, battle alliances, shared resource protection, cooperative hunting parties, and shared burial practices (especially between the Spokane and Kalispel peoples) (Fahey, 1986; Luttrell, 2011; Ruby and Brown, 1970 & 1981; Walker, 1998).
Officials of the Washington State Parks and Recreation Commission have determined that
• Pursuant to 25 U.S.C. 3001(3)(B), the 38 unassociated funerary objects described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and are believed, by a preponderance of the evidence, to have been removed from a specific burial site of a Native American individual.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the unassociated funerary objects and the Coeur d'Alene Tribe (previously listed as the Coeur d'Alene Tribe of the Coeur d'Alene Reservation, Idaho); Kalispel Indian Community of the Kalispel Reservation; and the Spokane Tribe of the Spokane Reservation.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Alicia Woods, Washington State Parks and Recreation Commission, PO Box 42650, Olympia, WA 98504–2650, telephone (360) 902.0939, email
The Washington State Parks and Recreation Commission is responsible for notifying the Coeur d'Alene Tribe (previously listed as the Coeur d'Alene Tribe of the Coeur d'Alene Reservation, Idaho); Kalispel Indian Community of the Kalispel Reservation; and the Spokane Tribe of the Spokane Reservation that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Department of the Interior, National Park Service, Grand Teton National Park, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, has determined that the cultural items listed in this notice meet the definition of sacred objects. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request to Grand Teton National Park. If no additional claimants come forward, transfer of control of the cultural items to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Grand Teton National Park at the address in this notice by September 16, 2013.
Mary Gibson Scott, Superintendent, Grand Teton National Park, P.O. Drawer 170, Moose, WY 83012, telephone (307) 739–3410, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items under the control of the U.S. Department of the Interior, National Park Service, Grand Teton National Park, Moose, WY, that meet the definition of sacred objects under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the Superintendent, Grand Teton National Park.
During the 1920s–1950s, David T. Vernon purchased, from native people and collectors, more than 1,400 items of Native American art and artifacts representing more than 100 North American tribes. In 1968, part of his collection, including the cultural items, was sold by David T. Vernon to the Jackson Hole Preserve, Inc. On December 13, 1976, Laurance S. Rockefeller, President of the Jackson Hole Preserve, Inc., donated the David T. Vernon Collection to Grand Teton National Park. The three sacred objects are two masks of braided cornhusks with cornhusk fringes and one triangular rattle made from a piece of elm bark.
The three cultural items came from the Seneca Nation of Indians (previously listed as the Seneca Nation of New York) and the societies to which they belong are still active in the Allegany and Cattaraugus communities. The sacred objects are needed by the still functioning Husk Face Society common to the Newtown Longhouse of the Cattaraugus community and Cold Spring Longhouse of the Allegany community.
Officials of Grand Teton National Park have determined that
• Pursuant to 25 U.S.C. 3001(3)(C), the three cultural items described above are specific ceremonial objects needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents.
• Pursuant to 25 U.S.C 3001 (2) there is a relationship of shared group identity that can be reasonably traced between the sacred objects and the Seneca Nation of Indians (previously listed as the Seneca Nation of New York).
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Mary Gibson Scott, Superintendent, Grand Teton National Park, P.O. Drawer 170, Moose, WY 83012, telephone (307) 739–3410, email
Grand Teton National Park is responsible for notifying the Seneca Nation of Indians (previously listed as the Seneca Nation of New York); Seneca-Cayuga Tribe of Oklahoma; and Tonawanda Band of Seneca (previously listed as the Tonawanda Band of Seneca Indians of New York) that this notice has been published.
National Park Service, Interior.
Notice; correction.
The Field Museum of Natural History has corrected a Notice of Intent to Repatriate published in the
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to the Field Museum of Natural History at the address in this notice by September 16, 2013.
Helen Robbins, Repatriation Director, Field Museum of Natural History, 1400 S Lake Shore Drive, Chicago, IL 60605, telephone (312) 665–7317, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate a cultural item under the control of the Field Museum of Natural History that meets the definition of sacred object under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
This notice removes the language surrounding right of possession and compromise of claim provisions published in a Notice of Intent to Repatriate in the
In the
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Helen Robbins, Repatriation Director, Field Museum of Natural History, 1400 S Lake Shore Drive, Chicago, IL 60605, telephone (312) 665–7317, email
The Field Museum of Natural History is responsible for notifying the Ho-Chunk Nation of Wisconsin and the Winnebago Tribe of Nebraska that this notice has been published.
National Park Service, Interior.
Notice.
The Maxey Museum has completed an inventory of human remains in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and present-day Indian tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to the Maxey Museum. If no additional requestors come forward, transfer of control of the human remains to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to the Maxey Museum at the address in this notice by September 16, 2013.
Gary Rollefson, Maxey Museum, Whitman College, 345 Boyer Avenue, Walla Walla, WA 99362, telephone (509) 527–4938, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the Maxey Museum, Walla Walla, WA. The human remains were removed from the Whitman College Biology Department, Walla Walla County, WA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Maxey Museum professional staff in consultation with representatives of Confederated Tribes and Bands of the Yakama Nation; Confederated Tribes of the Colville Reservation; Confederated Tribes of the Umatilla Indian Reservation (previously listed as the Confederated Tribes of the Umatilla Reservation, Oregon); Confederated Tribes of the Warm Springs Reservation of Oregon; Nez Perce Tribe (previously listed as Nez Perce Tribe of Idaho); and the Wanapum Band, a non-Federally recognized Indian group.
From May 2010 through May 2013, during the course of renovations in the laboratory storage facility of the Biology Department at Whitman College, in Walla Walla County, WA, the Biology Department asked the Maxey Museum at Whitman College to determine whether any of the human remains in the Biology Department's laboratory specimen teaching collections were Native American. Some of the human remains have been in the Biology Department's teaching collections since 1928. Due to the extensive dissection of the remains, it is difficult to determine the exact number of individuals represented in the collection. Maxey Museum NAGPRA Coordinator and Professor of Archaeology Gary Rollefson reviewed the human remains and determined that some of them might be Native American. In consultation with tribal representatives, the Maxey Museum conducted analysis to determine which, if any, human remains were Native American, as well as the cultural affiliation of those human remains identified as Native American.
The analysis resulted in a determination that the Biology Department's teaching collections included human remains representing, at minimum, 25 Native American individuals. The human remains were determined to be Native American through records kept upon their donation and by the nature of their antiquity. These Native American human remains were removed from the Biology Department and transferred to the Maxey Museum. No known individuals were identified. No associated funerary objects are present.
Many of the human remains have characteristics common to the Columbia River Plateau tribes, including occipital flattening, green residue staining from copper jewelry, and heavy tooth wear from eating foods that have been ground with stone tools or from eating foods that have been gritted with sand. Details about other characteristics can be found in reports dated May 2010, March 2013, and May 2013 on file at the Maxey Museum. Based upon the findings and characteristics described in these reports, the human remains have been determined to be culturally affiliated with the Columbia River Plateau tribes.
The Columbia River Plateau tribes are the Native people that used the lower Snake and Columbia Rivers jointly. Treaties were negotiated and signed with the Native communities during the expansion of the Washington and Oregon territories. The Native peoples in these United States territories were removed from the shores of the Columbia and Snake Rivers and their tributaries to the Colville, Umatilla, Yakama, Warm Springs, and Nez Perce reservations. These actions resulted in the splintering of family groups and the subsequent intermarriage of individual families from these reservations which further strengthened existing cultural affiliation between the bands and tribes. Cultural affiliation is further reinforced by living, enrolled members that have documented their ancestors buried along the lower Snake and Columbia Rivers. Today, the Columbia River Plateau tribes are represented by the Confederated Tribes and Bands of the Yakama Nation; Confederated Tribes of the Colville Reservation; Confederated Tribes of the Umatilla Indian Reservation (previously listed as the Confederated Tribes of the Umatilla Reservation, Oregon); Confederated Tribes of the Warm Springs Reservation of Oregon; Nez Perce Tribe (previously listed as Nez Perce Tribe of Idaho); and the Wanapum Band, a non-Federally recognized Indian group.
Officials of the Maxey Museum have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of a minimum of 25 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Confederated Tribes and Bands of the Yakama Nation; Confederated Tribes of the Colville Reservation; Confederated Tribes of the Umatilla Indian Reservation (previously listed as the Confederated Tribes of the Umatilla Reservation, Oregon); Confederated Tribes of the Warm Springs Reservation of Oregon; Nez Perce Tribe (previously listed as Nez Perce Tribe of Idaho); and the Wanapum Band, a non-Federally recognized Indian group.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Gary Rollefson, Maxey Museum, Whitman College, 345 Boyer Avenue, Walla Walla, WA 99362, telephone (509) 527–4938, email
The Maxey Museum is responsible for notifying the Confederated Tribes and Bands of the Yakama Nation; Confederated Tribes of the Colville Reservation; Confederated Tribes of the Umatilla Indian Reservation (previously listed as the Confederated Tribes of the Umatilla Reservation, Oregon); Confederated Tribes of the Warm Springs Reservation of Oregon; Nez Perce Tribe (previously listed as Nez Perce Tribe of Idaho); and the Wanapum Band, a non-Federally recognized Indian group, that this notice has been published.
National Park Service, Interior.
Notice.
History Colorado, formerly Colorado Historical Society, has completed an inventory of human remains, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and any present-day Indian tribes or Native Hawaiian organizations. Representatives of any Indian tribe Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to History Colorado. If no additional requestors come forward, transfer of control of the human remains to the Indian tribes or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to History Colorado at the address in this notice by September 16, 2013.
Sheila Goff, NAGPRA Liaison, History Colorado, 1200 Broadway, Denver, CO 80203, telephone (303) 866–4561, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of History Colorado, Denver, CO. Four sets of remains were received from the Mesa County Coroner and one set of remains was received from the Park County Coroner. The exact locations from which the sets of human remains were recovered are unknown.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by History Colorado professional staff in consultation with representatives of the Arapaho Tribe of the Wind River Reservation, Wyoming; Cheyenne and Arapaho Tribes (previously listed as the Cheyenne-Arapaho Tribes of Oklahoma); Comanche Nation, Oklahoma; Crow Creek Sioux Tribe of the Crow Creek Reservation, South Dakota; Fort Sill Apache Tribe of Oklahoma; Hopi Tribe of Arizona; Jicarilla Apache Nation, New Mexico; Kiowa Indian Tribe of Oklahoma; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; Navajo Nation, Arizona, New Mexico & Utah; Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation, Montana; Oglala Sioux Tribe (previously listed as the Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota); Ohkay Owingeh, New Mexico (previously listed as the Pueblo of San Juan); Paiute Indian Tribe of Utah (Cedar Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes) (formerly Paiute Indian Tribe of Utah (Cedar City Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes)); Pawnee Nation of Oklahoma; Pueblo of Acoma, New Mexico; Pueblo of Isleta, New Mexico; Pueblo of Jemez, New Mexico; Pueblo of Nambe, New Mexico; Pueblo of Picuris, New Mexico; Pueblo of San Felipe, New Mexico; Pueblo of San Ildefonso, New Mexico; Pueblo of Santa Ana, New Mexico; Pueblo of Santa Clara, New Mexico; Pueblo of Zia, New Mexico; Shoshone Tribe of the Wind River Reservation, Wyoming; Southern Ute Indian Tribe of the Southern Ute Indian Reservation, Colorado; Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota; Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah; Wichita and Affiliated Tribes (Wichita, Keechi, Waco & Tawakonie), Oklahoma; Ysleta del Sur Pueblo of Texas; and the Zuni Tribe of the Zuni Reservation, New Mexico. The Apache Tribe of Oklahoma; Cheyenne River Sioux Tribe of the Cheyenne River Reservation, South Dakota; Crow Tribe of Montana; Kewa Pueblo, New Mexico (previously listed as the Pueblo of Santo Domingo); Pueblo of Cochiti, New Mexico; Pueblo of Laguna, New Mexico; Pueblo of Pojoaque, New Mexico; Pueblo of Sandia, New Mexico; Pueblo of Tesuque, New Mexico; Rosebud Sioux Tribe of the Rosebud Indian Reservation, South Dakota; San Juan Southern Paiute Tribe of Arizona; Shoshone-Bannock Tribes of the Fort Hall Reservation; Standing Rock Sioux Tribe of North & South Dakota; and the Ute Indian Tribe of the Uintah & Ouray Reservation, Utah, were invited to consult, but did not participate. Hereafter, all tribes listed above are referred to as “The Consulted and Invited Tribes.”
At an unknown date, human remains representing, at minimum, four individuals were removed from an unknown location or locations by a private citizen. In June 2012, the human remains were found in a private home in Mesa County, CO, and were turned over to law enforcement authorities. The private citizen had previously lived in several cities in Colorado, including Alamosa, Durango, Cory, and Whitewater. Subsequently, the Mesa County Coroner ruled out a forensic interest in the human remains and turned them over to the Office of the State Archaeologist (OSAC), where they are identified as Office of Archaeology and Historic Preservation (OAHP) Case Number 289. Osteological analysis by Dr. Catherine Gaither indicates that the human remains are consistent with archaeological materials and are likely of Native American ancestry. No known individuals were identified. Pottery sherds and fossils were found in the box with the remains, but their relationship to the remains is unknown, and they are not considered associated funerary objects.
In June 2012, human remains representing, at minimum, one individual were found by a highway survey worker between two rocks at the side of the road. The worker contacted the Park County Sheriff who, along with the Park County Coroner, ruled out a forensic interest in the human remains. Osteological analysis by Dr. Catherine Gaither indicates the remains are consistent with archaeological materials and are likely of Native American ancestry. The remains were transferred to the OSAC, where they are identified as OAHP Case Number 291. No known individuals were identified. No associated funerary objects are present.
History Colorado, in partnership with the Colorado Commission of Indian Affairs, Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado, and the Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah, conducted tribal consultations among the tribes with ancestral ties to the State of Colorado to develop the process for disposition of culturally unidentifiable Native American human remains and associated funerary objects originating from inadvertent discoveries on Colorado State and private lands. As a result of the consultation, a process was developed,
The Native American Graves Protection and Repatriation Review Committee (Review Committee) is responsible for recommending specific actions for disposition of culturally unidentifiable human remains. On November 3–4, 2006, the
43 CFR 10.11 was promulgated on March 15, 2010, to provide a process for the disposition of culturally unidentifiable Native American human remains recovered from tribal or aboriginal lands as established by the final judgment of the Indian Claims Commission or U.S. Court of Claims, a treaty, Act of Congress, or Executive Order, or other authoritative governmental sources. As there is no evidence indicating that the human remains reported in this notice originated from tribal or aboriginal lands, they are eligible for disposition under the
Officials of History Colorado have determined that:
• Based on osteological analysis, the human remains are Native American.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of five individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• Pursuant to 43 CFR 10.11(c)(2)(ii) and the
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Sheila Goff, NAGPRA Liaison, History Colorado, 1200 Broadway, Denver, CO 80203, telephone (303) 866–4531, email
History Colorado is responsible for notifying The Consulted and Invited Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Department of the Interior, National Park Service, Casa Grande Ruins National Monument has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to Casa Grande Ruins National Monument. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Casa Grande Ruins National Monument at the address in this notice by September 16, 2013.
Karl Cordova, Superintendent, Casa Grande Ruins National Monument, 1100 W Ruins Drive, Coolidge, AZ 85128, telephone (520) 723–3172, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the U.S. Department of the Interior, National Park Service, Casa Grande Ruins National Monument, Coolidge, AZ. The human remains and associated funerary objects were removed from Casa Grande Ruins National Monument, Pinal County, AZ.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the Superintendent, Casa Grande Ruins National Monument.
A detailed assessment of the human remains was made by Casa Grande Ruins National Monument professional staff in consultation with representatives of the Ak Chin Indian Community of the Maricopa (Ak Chin) Indian Reservation, Arizona; Gila River Indian Community of the Gila River Indian Reservation, Arizona; Hopi Tribe of Arizona; Salt River Pima-Maricopa
In 1930, human remains representing, at minimum, 16 individuals were removed from Compound F in Pinal County, AZ. The Compound F site lies within the boundaries of Casa Grande Ruins National Monument and was excavated by the Van Bergen Expedition from the Los Angeles County Museum of Natural History (LACMNH). The excavation was sponsored by Charles Van Bergen and supervised by Arthur Woodward and Irwin Hayden. In 1968, the Compound F collection was loaned to the Arizona State Museum (ASM) and in 1983, the human remains were analyzed by the Human Remains Laboratory of ASM. The collection was returned to LACMNH in 1993. In 2011, the majority of the Compound F collection, including objects not subject to NAGPRA, was transferred to the National Park Service's Western Archeological and Conservation Center in Tucson, AZ. At the request of The Tribes, the human remains and associated funerary objects remained at LACMNH. No known individuals were identified. The 39 associated funerary objects are 25 sherds, 3 ceramic vessels, 6 faunal bone fragments, 1 bag of faunal bone fragments, 1 piece of turquoise, 1 pestle, 1 bag of charcoal, and 1 unworked cone shell fragment.
In the early 1930s, human remains representing, at minimum, one individual were removed from an unspecified site within the boundaries of Casa Grande Ruins National Monument in Pinal County, AZ. In 1934, the remains and associated funerary object were donated to the Phoebe A. Hearst Museum, where they are currently housed, by LACMNH through Arthur Woodward. No known individuals were identified. The one associated funerary object is a Casa Grande Red-on-buff ceramic funerary urn.
Several excavations sponsored by LACMNH and supervised by Arthur Woodward occurred within the boundaries of Casa Grande Ruins National Monument in the early 1930s, including the Compound F site and an unnamed site in the southeast corner of the monument. Based on the totality of information, Casa Grande Ruins National Monument has determined that the remains originated from one of these two sites.
Both the Compound F site and the unnamed site in the southeast corner of the monument have been determined to be Hohokam Classic Period (A.D.1150–1450) sites. Evidence demonstrating historical and cultural ties between the people of prehistoric Hohokam Classic Period sites and the modern Four Southern Tribes still living in the region (Ak Chin Indian Community of the Maricopa (Ak Chin) Indian Reservation, Arizona; Gila River Indian Community of the Gila River Indian Reservation, Arizona; Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona; and Tohono O'odham Nation of Arizona) include linguistic continuity, oral tradition, settlement patterns, burial practices (cremation burials), historical records, and similarities in material culture (red-on-buff ceramics). Evidence demonstrating historical and cultural ties between the inhabitants of the prehistoric Hohokam Classic Period sites within Casa Grande Ruins National Monument and the contemporary peoples of the Hopi Tribe of Arizona and the Zuni Tribe of the Zuni Reservation, New Mexico include geography, oral history, and archeological evidence.
Officials of Casa Grande Ruins National Monument have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of 17 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 40 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and The Tribes.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Karl Cordova, Superintendent, Casa Grande Ruins National Monument, 1100 W Ruins Drive, Coolidge, AZ 85128, telephone (520) 723–3172, email
Casa Grande Ruins National Monument is responsible for notifying The Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The St. Joseph County Sheriff's Department has completed an inventory of human remains, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and any present-day Indian tribes or Native Hawaiian organizations. Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to the St. Joseph County Sheriff's Department. If no additional requestors come forward, transfer of control of the human remains to the Indian tribes or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to the St. Joseph County Sheriff's Department at the address in this notice by September 16, 2013.
Undersheriff Mark Lillywhite, St. Joseph County Sheriff's Department, 650 East Main Street, Centreville, MI 49032, telephone (269) 467–9045.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Michigan State University Forensic Anthropology Department professional staff on behalf of the St. Joseph County Sheriff's Department with representatives of the Nottawaseppi Huron Band of the Potawatomi, Michigan (previously listed as the Huron Potawatomi, Inc.).
In December 1970, human remains representing, at minimum, one individual were removed from Section 27, Leonidas Township, in St. Joseph County, MI. The remains were transferred to the Michigan State University Forensic Anthropology Department where they were identified and transferred back to the St. Joseph County Sheriff's Department on June 26, 2013. The human remains were identified as a 30–40 year old Native American female from a pre-20th century population. No known individual was identified. No associated funerary objects are present.
Officials of the St. Joseph County Sheriff's Department have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on evaluation by the Michigan State University Forensic Anthropology Department.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• Pursuant to 25 U.S.C. 3001(15), the land from which the Native American human remains were removed is the near the tribal land of the Nottawaseppi Huron Band of the Potawatomi, Michigan (previously listed as the Huron Potawatomi, Inc.).
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains may be to the Nottawaseppi Huron Band of the Potawatomi, Michigan (previously listed as the Huron Potawatomi, Inc.).
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Undersheriff Mark Lilywhite, St. Joseph County Sheriff's Department, 650 East Main Street, Centreville, MI 49032, telephone (269) 467–9045, by September 16, 2013. After that date, if no additional requestors have come forward, transfer of control of the human remains to the Nottawaseppi Huron Band of the Potawatomi, Michigan (previously listed as the Huron Potawatomi, Inc.) may proceed.
The St. Joseph County Sheriff's Department is responsible for notifying the Nottawaseppi Huron Band of the Potawatomi, Michigan (previously listed as the Huron Potawatomi, Inc.) that this notice has been published.
National Park Service, Interior.
Notice.
The Washington State Parks and Recreation Commission has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the Washington State Parks and Recreation Commission. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the Washington State Parks and Recreation Commission at the address in this notice by September 16, 2013.
Alicia Woods, Washington State Parks and Recreation Commission, PO Box 42650, Olympia, WA 98504–2650, telephone (360) 902–0939, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the Washington State Parks and Recreation Commission. The human remains and associated funerary objects were removed from Riverside State Park, in Spokane County, WA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains and associated funerary objects was made by the Washington State Parks and Recreation Commission professional staff in consultation with representatives of the Coeur d'Alene Tribe (previously listed as the Coeur d'Alene Tribe of the Coeur d'Alene Reservation, Idaho) and the Spokane Tribe of the Spokane Reservation. The Kalispel Indian Community of the Kalispel Reservation was invited to consult but did not participate.
From 1950 through 1953, human remains representing, at minimum, three individuals were removed from site 45–SP–5 in Spokane County, WA. The human remains were excavated by Louis R. Caywood of the National Park Service under a contract with the Washington State Parks and Recreation Commission. The human remains and associated funerary objects were identified in 2005, and were transferred from a storage facility in Seattle, WA, to the Washington State Parks and Recreation Commission headquarters in Olympia, WA, sometime after 2006. No known individuals were identified. The four associated funerary objects are mammal bone.
During 1962 and 1963, human remains representing, at minimum, four individuals were removed from site 45–SP–5 in Spokane County, WA. The human remains were excavated by John D. Combes of Washington State University under a contract with the Washington State Parks and Recreation Commission. The human remains and associated funerary objects were identified in 2006, and were transferred from a storage facility in Seattle, WA, to the Washington State Parks and Recreation Commission headquarters in Olympia, WA, sometime after 2006. No known individuals were identified. The 120 associated funerary objects are 50 stone flakes; 47 unmodified stones; 1 unmodified concretion; 5 unmodified olivella shell; 4 lots of charcoal; 2 lots of mammal bone; 2 lots of metal fragments; 4 lots of shell fragments; 4 lots of wood fragments; and 1 lot of plant material.
At an unknown date, human remains representing, at minimum, one individual were removed from site 45–SP–5 in Spokane County, WA. In 2008, the human remains were discovered in a storage building located adjacent to the site and were transferred to the Washington State Parks and Recreation Commission headquarters in Olympia, WA. No known individuals were identified. No associated funerary objects are present.
The site is a burial ground that dates from before 1812 to approximately 1885. Based on the material recovered from a small percentage of the overall number of burials, it would appear the burials are associated with the “immediate pre-contact, fur trade, or post-fur trade periods” (Luttrell, 2011). These dates are supported by first-person accounts of the types and styles of burials during and following the fur trade era (Cox, 1957; Luttrell, 2011; Williams, 1922). The human remains recovered from this site are incomplete and culturally non-diagnostic. Due to the nature of the site, the antiquity of the remains, the objects recovered with the remains, and the general nature and history of the overall site, the Washington State Parks and Recreation Commission staff has determined that, more likely than not, the eight individuals are of Native American ancestry.
The Washington State Parks and Recreation Commission staff has determined there is a relationship of shared group identity between the human remains and associated funerary objects and the modern day tribes of the Coeur d'Alene Tribe (previously listed as the Coeur d'Alene Tribe of the Coeur d'Alene Reservation, Idaho); Kalispel Indian Community of the Kalispel Reservation; and the Spokane Tribe of the Spokane Reservation. This determination is based on ethnographic evidence that the Upper and Middle Spokane people predominantly resided in the area and utilized the resources of this site in the pre- and post-contact period. Connections between the three groups included intermarriage between the Spokane and Kalispel people and the Spokane and Coeur d'Alene people as well as shared linguistic heritage, overlapping trade networks, battle alliances, shared resource protection, cooperative hunting parties, and shared burial practices (especially between the Spokane and Kalispel peoples) (Fahey, 1986; Luttrell, 2011; Ruby and Brown, 1970 & 1981; Walker, 1998). Additionally, during consultation with the Spokane Tribe, representatives stated the site is a part of their people's traditional territory, and the burial ground is a sacred place of their people.
Officials of the Washington State Parks and Recreation Commission have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of eight individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 124 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Coeur d'Alene Tribe (previously listed as the Coeur d'Alene Tribe of the Coeur d'Alene Reservation, Idaho); Kalispel Indian Community of the Kalispel Reservation; and the Spokane Tribe of the Spokane Reservation.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request Alicia Woods, Washington State Parks and Recreation Commission, PO Box 42650, Olympia, WA 98504–2650, telephone (360) 902–0939, email
The Washington State Parks and Recreation Commission is responsible for notifying the Coeur d'Alene Tribe (previously listed as the Coeur d'Alene Tribe of the Coeur d'Alene Reservation, Idaho); Kalispel Indian Community of the Kalispel Reservation; and the Spokane Tribe of the Spokane Reservation that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Department of the Interior, National Park Service, Wupatki National Monument has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Wupatki National Monument at the address in this notice by September 16, 2013.
Lisa Leap, Acting Superintendent, Wupatki National Monument, 6400 N Hwy 89, Flagstaff, AZ 86004, telephone (928) 526–1157 ext. 222, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the U.S. Department of the Interior, National Park Service, Wupatki National Monument, Flagstaff, AZ. The human remains and associated funerary objects were removed from within the boundaries of Wupatki National Monument in Coconino County, AZ.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the Superintendent, Wupatki National Monument.
A detailed assessment of the human remains was made by Wupatki National Monument professional staff in consultation with representatives of the Cocopah Tribe of Arizona; Colorado River Indian Tribes of the Colorado River Indian Reservation, Arizona and California; Fort McDowell Yavapai Nation, Arizona; Fort Mojave Indian Tribe of Arizona, California & Nevada; Havasupai Tribe of the Havasupai Reservation, Arizona; Hopi Tribe of Arizona; Hualapai Indian Tribe of the Hualapai Indian Reservation, Arizona; Jicarilla Apache Nation, New Mexico; Kaibab Band of Paiute Indians of the Kaibab Indian Reservation, Arizona; Kewa Pueblo, New Mexico (previously listed as the Pueblo of Santo Domingo); Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; Navajo Nation, Arizona, New Mexico & Utah; Ohkay Owingeh, New Mexico (previously listed as the Pueblo of San Juan); Pueblo of Acoma, New Mexico; Pueblo of Cochiti, New Mexico; Pueblo of Isleta, New Mexico; Pueblo of Jemez, New Mexico; Pueblo of Laguna, New Mexico; Pueblo of Nambe, New Mexico; Pueblo of Picuris, New Mexico; Pueblo of Pojoaque, New Mexico; Pueblo of San Ildefonso, New Mexico; Pueblo of Sandia, New Mexico; Pueblo of Santa Ana, New Mexico; Pueblo of Santa Clara, New Mexico; Pueblo of Taos, New Mexico; Pueblo of Tesuque, New Mexico; Pueblo of Zia, New Mexico; Quechan Tribe of the Fort Yuma Indian Reservation, California & Arizona; Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona; San Carlos Apache Tribe of the San Carlos Reservation, Arizona; San Juan Southern Paiute Tribe of Arizona; Tonto Apache Tribe of Arizona; White Mountain Apache Tribe of the Fort Apache Reservation, Arizona; Yavapai-Apache Nation of the Camp Verde Indian Reservation, Arizona; Yavapai-Prescott Indian Tribe (previously listed as the Yavapai-Prescott Tribe of the Yavapai Reservation, Arizona); Ysleta Del Sur Pueblo of Texas; and Zuni Tribe of the Zuni Reservation, New Mexico. The Pueblo of San Felipe, New Mexico was contacted, but did not have an internal process to address the issue of repatriation. Hereafter, all tribes listed above are referred to as “The Tribes.”
In 1934, human remains representing, at minimum, one individual were removed from Nalakihu Pueblo, in Coconino County, AZ, during a Civil Works Administration excavation conducted by the Museum of Northern Arizona. The human remains and associated funerary objects are in the physical custody of the Museum of Northern Arizona in Flagstaff, AZ. No known individuals were identified. The 19 associated funerary objects are 9 animal bones, 1 piece of charred cotton cloth, 1 axe, 1 pitcher fragment, 1 Walnut black-on-white mug, 1 Tsegi red-on-orange ladle, 1 Sunset red bowl, 1 Turkey Hill red jar, 2 obsidian projectile points, and 1 piece of charcoal.
On the basis of architecture and ceramics, Nalakihu Pueblo is dated to A.D. 1150–1300. The human remains, a cremation, have been analyzed by physical anthropologists who have determined them to be Native American. The burial was excavated immediately east of and contemporaneous with the site. Incineration occurred on a pyre or platform over a shallow, rectangular basin with a circular pit in the center. Four poles, slanted inward, intersected at about 4 feet above the central pit. The entire pit showed evidence of burning, indicating that the cremation occurred at that location. The cremation method is highly unusual for the Flagstaff and Wupatki areas but is reminiscent of mortuary practices of the lower Colorado River tribes such as the historic Quechan, Halchidohoma, Maricopa, Mojave, and/or Cocopah. The associated funerary objects are similar to Hopi and Zuni objects.
Officials of Wupatki National Monument have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 19 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Cocopah Tribe of Arizona; Colorado River Indian Tribes of the Colorado River Indian Reservation, Arizona and California; Fort Mojave Indian Tribe of Arizona, California & Nevada; Hopi Tribe of Arizona; Quechan Tribe of the Fort Yuma Indian Reservation, California & Arizona; Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona; and Zuni Tribe of the Zuni Reservation, New Mexico.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Lisa Leap, Acting Superintendent, Wupatki National Monument, 6400 N Hwy 89, Flagstaff,
Wupatki National Monument is responsible for notifying The Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The Rochester Museum & Science Center has completed an inventory of associated funerary objects, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the associated funerary objects and present-day Indian tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these associated funerary objects should submit a written request to the Rochester Museum & Science Center. If no additional requestors come forward, transfer of control of the associated funerary objects to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these associated funerary objects should submit a written request with information in support of the request to the Rochester Museum & Science Center at the address in this notice by September 16, 2013.
George McIntosh, Rochester Museum & Science Center, 657 East Ave., Rochester, NY 14607, telephone (585) 271–4552 x 306, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of associated funerary objects under the control of the Rochester Museum & Science Center, Rochester, NY. The associated funerary objects were removed from a small island off Prince of Wales Island, AK.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the associated funerary objects was made by the Rochester Museum & Science Center professional staff in consultation with representatives of the Central Council of the Tlingit & Haida Indian Tribes and the Hydaburg Cooperative Association.
Sometime prior to 1924, five associated funerary objects were removed from an unnamed small island off Prince of Wales Island, AK, according to Rochester Museum & Science Center catalogue records. The associated funerary objects that at one time housed human remains were collected by Esther Gibson, who worked as a missionary nurse in Alaska for 33 years. On May 29, 1924, the Rochester Museum & Science Center (then Rochester Museum of Arts and Sciences) purchased the associated funerary objects from Gibson, who lived in Rochester, NY, at the time. No known individuals were identified. The five associated funerary objects are 1 wooden cremation box (24.57.3/AE 471), 1 sea lion hide (24.57.4/AE 472), 1 plaited cremation basket (24.57.5/AE 473), 1 rope (24.57.6/AE 474), and 1 plaited mat (24.57.7/AE 475).
The Rochester Museum & Science Center's collections records indicate that the associated funerary objects were found under a cliff on a small island off Prince of Wales Island, AK. The records state that the cremation box contained the ashes of a Tlingit shaman or chief wrapped in the sea lion hide, but the human remains are not present. The mat was wrapped around the outside of the box to protect it and secured with the rope. The documentation also states that the cremation basket, found beside the cremation box, contained the ashes of a slave, that are not present. A medallion adorning the top of the cremation box appears to commemorate George III of England, circa A.D. 1760–1800. Through consultation, it has been established that it was not uncommon for the Tlingit to acquire foreign objects through trade and use them to decorate cultural objects. Tlingit consultants also identified the paintings on the box as an old style Tlingit design probably dating to the late 1700s. This documentary, physical, and cultural evidence strongly suggests that the associated funerary objects are culturally affiliated with the Tlingit. This affiliation is also supported by historical evidence, which shows that the Prince of Wales Island was traditionally a Tlingit territory. It was not until the late 18th century that the Tlingit began to leave the area and the Kaigani Haida inhabited their abandoned villages.
Officials of the Rochester Museum & Science Center have determined that:
• Pursuant to 25 U.S.C. 3001(3)(A), the five objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American associated funerary objects and the Central Council of the Tlingit & Haida Indian Tribes.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these associated funerary objects should submit a written request with information in support of the request to George McIntosh, Rochester Museum & Science Center, 657 East Ave., Rochester, NY 14607, telephone (585) 271–4552 x 306, email
The Rochester Museum & Science Center is responsible for notifying the Central Council of the Tlingit & Haida Indian Tribes and the Hydaburg Cooperative Association that this notice has been published.
National Park Service, Interior.
Notice.
Colorado State University has completed an inventory of human remains, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and any present-day Indian tribes or Native Hawaiian organizations. Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to Colorado State University, Department of Anthropology. If no additional requestors come forward, transfer of control of the human remains to the Indian tribes or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Colorado State University, Department of Anthropology at the address in this notice by September 16, 2013.
Christopher Green, Colorado State University, B–218 Clark Building, c/o Christopher Green, 1787 Campus Delivery, Fort Collins, CO 80525, telephone (970) 213–3060, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of Colorado State University, Department of Anthropology, Fort Collins, CO. The human remains were removed near Lupton, in Apache County, AZ.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Department of Anthropology at Colorado State University in consultation with representatives of the Arapaho Tribe of Wind River Reservation, Wyoming; Cheyenne & Arapaho Tribes, Oklahoma (previously listed as the Cheyenne-Arapaho Tribes of Oklahoma); Navajo Nation, Arizona, New Mexico & Utah; Pueblo of San Ildefonso, New Mexico; Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado; and the Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah.
Sometime before 1991, human remains representing, at minimum, one individual were removed from an unknown site near Lupton in Apache County, AZ. Collection and archival research by Dr. Jason LaBelle and Dr. Ann Magennis between 2005 and 2010, failed to find any documentation regarding this individual. This case represents miscellaneous teeth fragments from one individual. No invasive investigation has been done to make any other determinations. No known individuals were identified. No associated funerary objects are present.
Officials of the Colorado State University, Department of Anthropology have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on the condition, the assemblage, and the age of the remains.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• According to final judgments of the Indian Claims Commission or the Court of Federal Claims, the land from which the Native American human remains were removed is the aboriginal land of the Navajo Nation, Arizona, New Mexico & Utah.
• Treaties, Acts of Congress, or Executive Orders, indicate that the land from which the Native American human remains were removed is the aboriginal land of the Navajo Nation, Arizona, New Mexico & Utah.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains may be to the Navajo Nation, Arizona, New Mexico & Utah.
Representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Christopher Green, Colorado State University, B–218 Clark Building, c/o Christopher Green, 1787 Campus Delivery, Fort Collins, CO 80525, telephone (970) 213–3060, email
Colorado State University is responsible for notifying the Arapaho Tribe of Wind River Reservation, Wyoming; Cheyenne & Arapaho Tribes, Oklahoma (previously listed as the Cheyenne-Arapaho Tribes of Oklahoma); Navajo Nation, Arizona, New Mexico & Utah; Pueblo of San Ildefonso, New Mexico; Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado; and the Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah that this notice has been published.
National Park Service, Interior.
Notice; correction.
The Anthropological Studies Center, Sonoma State University, has corrected an inventory of human remains and associated funerary objects, published in a Notice of Inventory Completion in the
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the Anthropological Studies Center, Sonoma State University, at the address in this notice by September 16, 2013.
Sandra Massey, NAGPRA Coordinator, Anthropological Studies Center, Archaeological Collections Facility, Sonoma State University, 1801 East Cotati Ave., Building 29, Rohnert Park, CA 94928, telephone (707) 664–2381, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the correction of an inventory of human remains and associated funerary objects under the control of the Anthropological Studies Center, Sonoma State University, Rohnert Park, CA. The human remains and associated funerary objects were removed from site CA–MRN–27, Marin County, CA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
This notice corrects the minimum number of individuals and the number of associated funerary objects published in a Notice of Inventory Completion in the
In the
In 1967, human remains representing a minimum of 104 individuals were removed from the Reedland Woods site (CA–MRN–27), Tiburon, Marin County, CA, during an excavation under the direction of Dr. Frederickson (accession number 67–01). Additional human remains and associated funerary objects from this site were reburied in 1992 at Ya-Ka-Ama Indian Educational Center in Forestville, CA.
In the
The 6,640 associated funerary objects are 33 bone tools; 2 bone beads; 8 bone pendants; 1 bone pendant or net gauge; 32 bone tubes; 1 bone tube/whistle; 8 bone whistles; 19 pieces modified bone of indefinite use; 4 antler tools; 7 charmstones; 2 quartz crystals; 6 pieces miscellaneous groundstone; 7 pestles; 1 mortar; 53 obsidian tools; 12 worked/utilized obsidian flakes; 12 pieces otherwise worked obsidian; 5 chert tools; 3 chert utilized/worked flakes; 5 pieces otherwise worked chert; 7 pieces worked miscellaneous lithics; 3 pieces micaceous schist; 1 steatite ring; 1 steatite cone; 2 steatite pendants; 5 steatite beads; 4 pieces unworked steatite; 13 Haliotis (abalone) shell ornaments; 27 Haliotis beads; 2 Haliotis pendants; 669 Olivella shell beads; 113 miscellaneous shell beads; 4 pieces perforated Macoma (saltwater clam) shell; 7 pieces ochre; 193 pieces miscellaneous lithic debitage; 154 pieces baked clay; 35 clay shell casts; 1 charcoal sample; 4,328 pieces unmodified faunal bone; 422 pieces unmodified shell; 426 pieces miscellaneous unmodified lithic materials; and 2 soil samples.
In the
Officials of the Archaeological Collections Facility, Sonoma State University determined that, pursuant to 25 U.S.C. 3001 (9–10), the human remains described above represent the physical remains of 156 individuals of Native American ancestry. Officials of the Archaeological Collections Facility, Sonoma State University also have determined that, pursuant to 25 U.S.C. 3001 (3)(A), the 6,640 objects described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Sandra Massey, NAGPRA Coordinator, Anthropological Studies Center, Archaeological Collections Facility, Sonoma State University, 1801 East Cotati Ave., Building 29, Rohnert Park, CA, 94928, telephone (707) 664–2381, email
The Anthropological Studies Center, Sonoma State University, is responsible for notifying the Federated Indians of Graton Rancheria, California, that this notice has been published.
National Park Service, Interior.
Notice; correction.
The U.S. Department of the Interior, National Park Service, San Juan Island National Historical Park has corrected an inventory of human remains and associated funerary objects, published in a corrected Notice of Inventory Completion in the
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to San Juan Island National Historical Park at the address in this notice by September 16, 2013.
Lee Taylor, Superintendent, San Juan Island National Historical Park, P.O. Box 429, Friday Harbor, WA 98250, telephone (360) 378–2240, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the correction of an inventory of human remains and associated funerary objects under the control of the U.S. Department of the Interior, National Park Service, San Juan Island National Historical Park, Friday Harbor, WA, and in the physical custody of the Thomas Burke Memorial Washington State Museum (Burke Museum), University of Washington, Seattle, WA. The human remains and associated funerary objects were removed from three prehistoric archeological sites within the boundaries of San Juan Island National Historical Park, San Juan County, WA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the Superintendent, San Juan Island National Historical Park.
This notice corrects the minimum number of individuals and number of associated funerary objects published in a corrected Notice of Inventory Completion in the
In the
In 1946 and 1947, human remains representing a minimum of eight individuals were removed from the Cattle Point Site (45–SJ–01) on San Juan Island in San Juan County, WA, during legally authorized excavations by University of Washington archeologist Arden King.
In the
In 1970, 1971, and 1972, human remains representing a minimum of 36 individuals were removed from the English Camp Site in San Juan County, WA, during University of Idaho field schools directed by Dr. Roderick Sprague. The human remains and associated funerary objects were transferred to the Burke Museum and accessioned by the National Park Service. No known individuals were identified. The 60 associated funerary objects are 1 splinter awl made from deer bone, 1 tip of an antler tine, 1 square nail fragment, 1 wood fragment, 1 Horse Clam shell fragment, 6 basalt flakes, 47 non-human skeletal fragments and non-human teeth, and 2 bags of non-human bone.
In the
Between 1984 and 1990, human remains representing a minimum of 14 individuals were removed from the English Camp Site in San Juan County, WA, during legally authorized excavations by Professor Julie Stein of the University of Washington. The human remains and associated funerary objects were transferred to the Burke Museum and accessioned by the National Park Service. No known individuals were identified. The 34 associated funerary objects are 28 non-human bone fragments, 1 miniature bone club, and 5 bags of non-human bone.
In the
In 1951, human remains representing a minimum of eight individuals were removed from the North Garrison Bay Site (45–SJ–25) in San Juan County, WA, during a summer field school in archeology under the direction of Professor Carroll Burroughs of the University of Washington.
In the
Based upon non-destructive osteological analysis, archeological data, geographic context and accession data, the 76 individuals from the four San Juan Island sites are of Native American ancestry.
In the
Officials of San Juan Island National Historical Park have determined that, pursuant to 25 U.S.C. 3001 (9–10), the human remains described above represent the physical remains of 76 individuals of Native American ancestry. Officials of San Juan Island National Historical Park also have determined that, pursuant to 25 U.S.C. 3001 (3)(A), the 143 associated funerary objects are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Lee Taylor, Superintendent, San Juan Island National Historical Park, P.O. Box 429, Friday Harbor, WA 98250, telephone (360) 378–2240, email
San Juan Island National Historical Park is responsible for notifying the Lummi Tribe of the Lummi Reservation; Samish Indian Nation (previously listed as the Samish Indian Tribe, Washington); and Swinomish Indians of the Swinomish Reservation of Washington that this notice has been published.
National Park Service, Interior.
Meeting notice.
As required by the Federal Advisory Committee Act (Pub. L. 92–463, 86 Stat. 770), the National Park Service (NPS) is hereby giving notice that the Aniakchak National Monument Subsistence Resource Commission (SRC) and the Wrangell-St. Elias National Park SRC will hold meetings to develop and continue work on NPS subsistence program recommendations and other related subsistence management issues. The NPS SRC program is authorized under Title VIII, Section 808 of the Alaska National Interest Lands Conservation Act, Public Law 96–487.
The proposed meeting agenda for each meeting includes the following:
SRC meeting locations and dates may change based on inclement weather or exceptional circumstances. If the meeting date and location are changed, the Superintendent will issue a press release and use local newspapers and radio stations to announce the meeting.
These meetings are open to the public and will have time allocated for public testimony. The public is welcome to present written or oral comments to the SRC. The meetings will be recorded and meeting minutes will be available upon request from the Park Superintendent for public inspection approximately six weeks after the meeting. Before including your address, telephone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Nominations for the following properties being considered for listing or related actions in the National Register were received by the National Park Service before July 27, 2013. Pursuant to section 60.13 of 36 CFR part 60, written comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation. Comments may be forwarded by United States Postal Service, to the National Register of Historic Places, National Park Service, 1849 C St. NW., MS 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service,1201 Eye St. NW., 8th floor, Washington, DC 20005; or by fax, 202–371–6447. Written or faxed comments should be submitted by September 3, 2013. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
National Park Service, Interior.
Notice.
The University of Colorado Museum of Natural History, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, has determined that the cultural items listed in this notice meet the definition of sacred objects and objects of cultural patrimony. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request to the University of Colorado Museum of Natural History. If no additional claimants come forward, transfer of control of the cultural items to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to the University of Colorado Museum of Natural History at the address in this notice by September 16, 2013.
Jen Shannon, Curator of Cultural Anthropology, University of Colorado Museum of Natural History, 218 UCB, Boulder, CO 80309–0218, telephone (303) 492–6276, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items under the control of the University of Colorado Museum of Natural History, Boulder, CO that meet the definition of sacred objects and objects of cultural patrimony under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
In September 1970, Joe Ben Wheat, Curator of Anthropology, purchased for the University of Colorado Museum of Natural History one cultural item. Dr. Wheat acquired this item from an unknown individual. The sacred object and object of cultural patrimony is a Monsterway Protectionway medicine bundle (jish) (catalog # 22437a–y). The dimensions are 10.7cm × 0.9cm.
In the spring of 1977, Muriel Sibell Wolle, former University of Colorado art and art history professor, bequeathed to the University of Colorado Museum of Natural History two cultural items. Professor Wolle acquired these items on an unknown date from an unknown individual. The two sacred objects and objects of cultural patrimony are Keet'aan Yalti'i (Twin Fetish Gods) (catalog # 26691) and Ha'da'honiye' (Mirage Stone) (catalog # 26692). The Twin Fetish Gods are comprised of one light colored stone and one mostly dark banded stone. Both stones have four inlays, three of which are turquoise and a fourth abalone. These inlays are located at the wider end of the stones and are arranged in a quadrate pattern. Multicolored yarn (red, green, purple, orange, and white) encircles almost three quarters of the two stones. Three tabular abalone shells measuring 2.5cm × 5cm are attached by twine to the yarn. A number of peacock, bluebird, and other unidentified feathers are inserted between the stones and the yarn. The Mirage Stone is a solid cylinder of grayish-white mirage/aragonite stone. Both ends of the cylinder are bordered with an inlay of green turquoise chips.
In 1979, H. Jackson Clark, Sr., owner of the Toh-Atin Gallery, Durango, CO, donated one cultural item to the University of Colorado Museum of
On December 9, 1983, Harris “Tommy” and Lee Thompson donated one cultural item to the University of Colorado Museum of Natural History. The donors acquired this item at an unknown date from an unknown individual. The sacred object and object of cultural patrimony is a Keet'aan Yalti'i (Twin Fetish Gods) with pouch (catalog # 1983.47.1 A–B (34509 A–B)). The twin fetish is comprised of two stones, one white and one striated gray with feather headdresses and facial features of small inlaid turquoise. Identical animal forms are bound to the front and back of each with multicolored yarn wrappings. Also tied to them with yarn is a small buckskin infant-like figure. Below the yarn wrapping is a beaded buckskin kilt with buckskin ties and fringe of colored yarn. Their overall dimensions are 15.5cm x 4.5cm.
In September of 1984, H. Jackson Clark, Sr., owner of the Toh-Atin Gallery, Durango, CO, donated one cultural item to the University of Colorado Museum of Natural History. Mr. Clark acquired this item on an unknown date from an unknown individual on the Navajo Reservation. The sacred object and object of cultural patrimony is a Hóchxó íjí Jish (Evilway Medicine Bundle) and Diné Bi Nilchi ji Jish (Navajo Windway Medicine Bundle) (catalog # 1984.9.2).
During consultation, representatives of the Navajo Nation provided evidence in support of cultural affiliation as well as the determination that the items are both sacred objects and objects of cultural patrimony. The anthropological literature, including the work of Leland C. Wyman, also supports cultural affiliation. During consultation, the Navajo representatives described and demonstrated the purpose and use of many of items. They also related how wide the use of the items is today and how Navajo people today are being trained in their use. They also explained that the items are alive and must be cared for in specific ways and treated with respect.
Officials of the University of Colorado Museum of Natural History have determined that:
• Pursuant to 25 U.S.C. 3001(3)(C), the six cultural items described above are specific ceremonial objects needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents.
• Pursuant to 25 U.S.C. 3001(3)(D), the six cultural items described above have ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the sacred objects and objects of cultural patrimony and the Navajo Nation, Arizona, New Mexico & Utah.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Jen Shannon, Curator of Cultural Anthropology, University of Colorado Museum of Natural History, 218 UCB, Boulder, CO 80309–0218, telephone (303) 492–6276, email
The University of Colorado Museum of Natural History is responsible for notifying the Navajo Nation, Arizona, New Mexico & Utah that this notice has been published.
National Park Service, Interior.
Notice.
The Rochester Museum & Science Center, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, has determined that the cultural item listed in this notice meets the definition of a sacred object and an object of cultural patrimony. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim this cultural item should submit a written request to the Rochester Museum & Science Center. If no additional claimants come forward, transfer of control of the cultural item to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim this cultural item should submit a written request with information in support of the claim to the Rochester Museum & Science Center at the address in this notice by September 16, 2013.
George McIntosh, Rochester Museum & Science Center, 657 East Ave., Rochester, NY 14607, telephone (585) 271–4552 x 306, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate a cultural item under the control of the Rochester Museum & Science Center, Rochester, NY, that meets the definition of a sacred object and an object of cultural patrimony under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
The one sacred object and object of cultural patrimony is a Chilkat blanket (27.92.1/AE 580). Rochester Museum & Science Center catalog records show that on January 1, 1927, the Rochester Museum & Science Center (then Rochester Museum of Arts and Sciences) purchased the Chilkat blanket from John G. Worth of New York City,
Based on consultation with the Central Council of the Tlingit & Haida Indian Tribes, the Rochester Museum & Science Center reasonably believes this cultural item is culturally affiliated with the Tlingit. Furthermore, the museum was also informed during consultation that the object is considered to be both a sacred object and an object of cultural patrimony.
Officials of the Rochester Museum & Science Center have determined that
• Pursuant to 25 U.S.C. 3001(3)(C), the one cultural item described above is a specific ceremonial object needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents.
• Pursuant to 25 U.S.C. 3001(3)(D), the one cultural item described above has ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the sacred object/object of cultural patrimony and the Central Council of the Tlingit & Haida Indian Tribes.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to George McIntosh, Rochester Museum & Science Center, 657 East Ave., Rochester, NY 14607, telephone (585) 271–4552 x 306, email
The Rochester Museum & Science Center is responsible for notifying the Central Council of the Tlingit & Haida Indian Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The Thomas Burke Memorial Washington State Museum, University of Washington (Burke Museum), in consultation with the appropriate Indian tribes or Native Hawaiian organizations, has determined that the cultural items listed in this notice meet the definition of unassociated funerary objects. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request to the Burke Museum. If no additional claimants come forward, transfer of control of the cultural items to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to the Burke Museum at the address in this notice by September 16, 2013.
Peter Lape, Burke Museum, University of Washington, Box 35101, Seattle, WA 98195, telephone (206) 685–3849, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items under the control of the Burke Museum, Seattle, WA, that meet the definition of unassociated funerary objects under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
In 1919, two unassociated funerary objects were removed from the W.T. Good Farm, south of Mt. Vernon, in Skagit County, WA. Human remains and funerary objects were removed by A.R. Hilen and donated to the Burke Museum in 1919 (Burke Accn. #1613). The whereabouts of the human remains are unknown. The two unassociated funerary objects are copper bracelets.
The cemetery site from which the objects were removed was identified as an “Indian cemetery.” The Rygg and Lisk families occupied the property. The Lisk family was of Kikiallus heritage. The site described in this notice is located on the South Fork of the Skagit River. The two copper bracelets are consistent in style with Native American Coast Salish historic material culture.
Linguistically, Native American speakers of the Northern dialect of the Lushootseed language claim cultural heritage to the Skagit River delta area. Historical and anthropological sources (Amoss 1978, Mooney 1896, Spier 1936, Swanton 1952) indicate that the Kikiallus, Swinomish, Lower Skagit, and Upper Skagit people occupied and had village sites within the Skagit River delta area. Oral history provided by the Stillaguamish and legal testimony during the Indian Claims Commission decisions also indicates that the Stillaguamish utilized the Skagit River delta and Skagit Bay area for hunting, fishing, and clamming (Grady 2012:3). Today, descendants of Kikiallus are members of the Stillaguamish Tribe of Indians of Washington (previously listed as Stillaguamish Tribe of Washington); the Swinomish Indians of the Swinomish Reservation of Washington; and the Tulalip Tribes of Washington (previously listed as the Tulalip Tribes of the Tulalip Reservation, Washington). Today, the Lower Skagit are represented by the Swinomish Indians of the Swinomish Reservation of Washington. The Upper Skagit are represented by the Upper Skagit Indian Tribe.
Officials of the Burke Museum have determined that:
• Pursuant to 25 U.S.C. 3001(3)(B), the two cultural items described above are reasonably believed to have been
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the unassociated funerary objects and the Stillaguamish Tribe of Indians of Washington (previously listed as Stillaguamish Tribe of Washington); Swinomish Indians of the Swinomish Reservation of Washington; Tulalip Tribes of Washington (previously listed as the Tulalip Tribes of the Tulalip Reservation, Washington); and the Upper Skagit Indian Tribe.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Peter Lape, Burke Museum, University of Washington, Box 35101, Seattle, WA 98195, telephone (206) 685–3849, email
The Burke Museum is responsible for notifying the Lummi Tribe of the Lummi Reservation, Washington; Samish Indian Nation (previously listed as the Samish Indian Tribe, Washington); Sauk-Suiattle Indian Tribe; Stillaguamish Tribe of Indians of Washington (previously listed as Stillaguamish Tribe of Washington); Swinomish Indians of the Swinomish Reservation of Washington; Tulalip Tribes of Washington (previously listed as the Tulalip Tribes of the Tulalip Reservation, Washington); and the Upper Skagit Indian Tribe that this notice has been published.
U.S. International Trade Commission.
Notice.
The Commission has determined to deny a request to conduct a portion of its hearing in the above captioned investigations scheduled for August 13, 2013
Robin L. Turner, Office of the General Counsel, U.S. International Trade Commission, telephone 202–205–3103. Hearing-impaired individuals are advised that information on this matter may be obtained by contacting the Commission's TDD terminal on 202–205–3105.
The Commission believes that respondent Seafood Exporters Association of India has not justified the need for resorting to the extraordinary measure of an
This notice is provided pursuant to Commission Rule 201.35(b) (19 CFR 201.35(b)).
By order of the Commission.
United States International Trade Commission.
August 23, 2013 at 11:00 a.m.
Room 101, 500 E Street SW., Washington, DC 20436, Telephone: (202) 205–2000.
Open to the public.
1. Agendas for future meetings: none.
2. Minutes.
3. Ratification List.
4. Vote in Inv. Nos. 731–TA–929–931 (Second Review) (Silicomanganese from India, Kazakhstan, and Venezuela). The Commission is currently scheduled to complete and file its determinations and views of the Commission on or before September 12, 2013.
5. Outstanding action jackets: none.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission.
In accordance with Departmental Policy, 28 CFR 50.7, notice is hereby given that a proposed Consent Decree in
This proposed Consent Decree concerns a complaint filed by the United States against Riccelli Enterprises, Inc. and Riccelli Enterprises, LLC pursuant to Clean Water Act sections 301 and 309, 33 U.S.C. 1311 and 1319, to obtain injunctive relief from and impose civil penalties against the Defendants for violating the Clean Water Act by discharging pollutants without a permit into waters of the United States. The proposed Consent Decree resolves these allegations by requiring the Defendants to restore and monitor the impacted areas and to pay a civil penalty.
The Department of Justice will accept written comments relating to this proposed Consent Decree for thirty (30) days from the date of publication of this Notice. Please address comments to Charles E. Roberts, Assistant United States Attorney, 100 South Clinton Street, Syracuse, New York 13260–0039 and refer to
The proposed Consent Decree may be examined at the Clerk's Office, United States District Court for the Northern District of Syracuse, 100 South Clinton Street, Syracuse, NY 13261–7367. In addition, the proposed Consent Decree may be examined electronically at
In accordance with Departmental Policy, 28 CFR 50.7, notice is hereby given that a proposed Consent Decree in
This proposed Consent Decree concerns a complaint filed by the United States against the Port of Tacoma, Scarsella Brothers, Inc., Waka Group, Inc., and DEMCO, Inc., pursuant to 33 U.S.C. 1311, to obtain injunctive relief from and impose civil penalties against the Defendants for violating the Clean Water Act by discharging pollutants without a permit into waters of the United States. The State of Washington was also named as a party to the case, as required by 33 U.S.C. 1319(e), and is a signatory to the proposed Consent Decree. The proposed Consent Decree resolves the allegations against the Port of Tacoma, Scarsella Brothers, Inc., and Waka Group, Inc., by requiring those Defendants to restore the impacted areas, perform mitigation, and pay a civil penalty.
The Department of Justice will accept written comments relating to this proposed Consent Decree for thirty (30) days from the date of publication of this Notice. Please address comments to Austin D. Saylor, United States Department of Justice, Environment and Natural Resources Division, P.O. Box 7611, Washington, DC 20044, and refer to
The proposed Consent Decree may be examined at the Clerk's Office, United States District Court for the Western District of Washington, 700 Stewart Street, Suite 2310, Seattle, WA 98101. In addition, the proposed Consent Decree may be examined electronically at
Correction; 60-day notice.
This is a correction to a 60 day notice published August 9, 2013, FR 78, page 48720. The notice should have stated a comment period for 60 days from the publication date not 30 days. The Department of Justice (DOJ), Office of Justice Programs (OJP), Bureau of Justice Statistics (BJS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for October 15, 2013. This process is in accordance with 5 CFR 1320.10.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Shannan Catalano, Statistician (202) 616–3502, Bureau of Justice Statistics, 810 Seventh St. NW., Washington, DC 20531.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information should address one or more of the following four points:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g. permitting electronic submission of responses.
(1)
(2)
(3)
(4)
• New York-Northern New Jersey-Long Island, NY-NJ-PA;
• Los Angeles-Long Beach-Santa Ana, CA;
• Miami-Fort Lauderdale-Pompano Beach, FL;
• Dallas-Fort Worth-Arlington-TX; and
• Phoenix-Mesa-Glendale, AZ.
The NSHS will test alternative survey methods for measuring rape and sexual assault and develop improved collection procedures for these crimes.
(5)
• Approximately 50 victim service agencies, and 100 universities and colleges will be contacted to serve as liaisons between potential respondents about the survey. The average length of contact with these agencies is approximately 120 minutes per agency for a total of 300 burden hours.
• Approximately, 76,740 households will be contacted to screen for eligible
• Approximately 19,320 females ages 18 or older will be interviewed for eligibility in the NSHS. The screening portion of the NSHS is designed to filter out those females who have not experienced rape or sexual assault. The expected burden placed on these 19,320 respondents is 18 minutes per respondent for a total of 5,796 burden hours.
• An estimated 1,352 respondent (7%) are expected to be identified as victims of rape or sexual assault. These respondents will be administered a detailed incident questionnaire. The expected burden placed on these respondents is 15 minutes for a total of 338 burden hours.
(6) An estimate of the total public burden (in hours) associated with the collection: The total respondent burden is approximately 11,550 hours.
If additional information is required, contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 3W–1407B, Washington, DC 20530.
Pursuant to the authority contained in Section 512 of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. 1142, the 168th open meeting of the Advisory Council on Employee Welfare and Pension Benefit Plans (also known as the ERISA Advisory Council) will be held as a teleconference on September 23, 2013.
The meeting will take place in C5521 Room 4, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210. Public access is available only in this room (i.e. not by telephone). The meeting will run from 10:00 a.m. to approximately 4:00 p.m. The purpose of the open meeting is to discuss reports/recommendations for the Secretary of Labor on the issues of (1) Successful Retirement Plan Communications for Various Population Segments, (2) Locating Missing and Lost Participants, and (3) Private Sector Pension De-risking and Participant Protections. Descriptions of these topics are available on the Advisory Council page of the EBSA Web site at
Organizations or members of the public wishing to submit a written statement may do so by submitting 30 copies on or before September 16, 2013 to Larry Good, Executive Secretary, ERISA Advisory Council, U.S. Department of Labor, Suite N–5623, 200 Constitution Avenue NW., Washington, DC 20210. Statements also may be submitted as email attachments in text or pdf format transmitted to
Individuals or representatives of organizations wishing to address the Advisory Council should forward their requests to the Executive Secretary or telephone (202) 693–8668. Oral presentations will be limited to ten minutes, time permitting, but an extended statement may be submitted for the record. Individuals with disabilities who need special accommodations should contact the Executive Secretary by September 16, 2013 at the address indicated.
The Department of Labor is extending until September 6, 2013, the deadline for nominations of individuals for appointment to the Advisory Council on Employee Welfare and Pension Benefit Plans.
Section 512 of the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 895, 29 U.S.C. 1142, provides for the establishment of an Advisory Council on Employee Welfare and Pension Benefit Plans (the Council), which is to consist of 15 members to be appointed by the Secretary of Labor (the Secretary) as follows: Three representatives of employee organizations (at least one of whom shall be a representative of an organization whose members are participants in a multiemployer plan); three representatives of employers (at least one of whom shall be a representative of employers maintaining or contributing to multiemployer plans); one representative each from the fields of insurance, corporate trust, actuarial counseling, investment counseling, investment management, and accounting; and three representatives from the general public (one of whom shall be a person representing those receiving benefits from a pension plan). No more than eight members of the Council shall be members of the same political party.
Council members shall be persons qualified to appraise the programs instituted under ERISA. Appointments are for terms of three years. The prescribed duties of the Council are to advise the Secretary with respect to the carrying out of his or her functions under ERISA, and to submit to the Secretary, or his or her designee, recommendations with respect thereto. The Council will meet at least four times each year.
The terms of five members of the Council expire this year. The groups or fields they represent are as follows: (1) Employee organizations; (2) employers; (3) insurance; (4) accounting; and (5) the general public. The Department of Labor is committed to equal opportunity in the workplace and seeks a broad-based and diverse Council.
Accordingly, notice is hereby given that any person or organization desiring to nominate one or more individuals for
Nominations, including supporting letters, should:
• State the person's qualifications to serve on the Council.
• State that the candidate will accept appointment to the Council if offered.
• Include which of the five positions the candidate is nominated to fill.
• Include the nominee's full name, work affiliation, mailing address, phone number, and email address.
• Include the nominator's full name, mailing address, phone number, and email address.
• Include the nominator's signature, whether sent by email or otherwise. Please do not include any information that you do not want publicly disclosed.
In selecting Council members, the Secretary of Labor will consider individuals nominated in response to this
Nominees will be contacted to provide information on their political affiliation and their status as registered lobbyists. Nominees should be aware of the time commitment for attending meetings and actively participating in the work of the Council. Historically, this has meant a commitment of 15–20 days per year.
Copyright Royalty Board, Library of Congress.
Initiation of Phase II proceeding and request for Petitions to Participate.
The Copyright Royalty Judges (Judges) announce the commencement of a proceeding to determine the Phase II distribution of royalties deposited with the Register of Copyrights for the statutory license allowing distant retransmission of over-the-air television and radio broadcast signals by cable system operators. The funds to be distributed are those relating to broadcast years 2004, 2005, 2006, 2007, 2006, and 2009. The Judges also announce the date by which any party wishing to participate in this distribution proceeding must file its Petition to Participate and the accompanying $150 filing fee, if applicable.
Petitions to Participate and the filing fee are due on or before September 16, 2013.
Participants must submit an original, five paper copies, and an electronic copy in Portable Document Format (PDF) on a CD of the Petition to Participate, along with the $150 filing fee, to the Copyright Royalty Board by either mail or hand delivery. Participants MAY NOT submit Petitions to Participate and the $150 filing fee by an overnight delivery service other than the U.S. Postal Service Express Mail. If participants choose to use U.S. Postal Service (including overnight delivery), they must address their submissions to: Copyright Royalty Board, P.O. Box 70977, Washington, DC 20024–0977. If participants choose hand delivery by a private party, they must deliver the submissions to the Library of Congress, James Madison Memorial Building, LM–401, 101 Independence Avenue, SE., Washington, DC 20559–6000. If participants choose delivery by a commercial courier, they must deliver the submissions to the Congressional Courier Acceptance Site, located at 2nd and D Street NE., Washington, DC. The envelope must be addressed to: Copyright Royalty Board, Library of Congress, James Madison Memorial Building, LM–403, 101 Independence Avenue SE., Washington, DC 20559–6000.
LaKeshia Keys, CRB Program Specialist, by telephone at (202) 707–7658, or email at
Twice each calendar year, cable system operators must deposit royalty payments with the Copyright Office for the statutory license granting the privilege of retransmitting over-the-air television and radio broadcast signals. 17 U.S.C. 111. The royalties are then distributed to copyright owners whose works were retransmitted and who timely filed a claim for royalties.
The royalties at issue in this proceeding are being distributed in two phases. For broadcast years 2004 and 2005, the Judges conducted Phase I hearings, after which they determined the percentage allocation of the royalties among representatives of the major categories of copyrightable content (movies, sports programming, music, etc.). For broadcast years 2006 through 2009, the parties settled their controversies. The Judges authorized a final Phase I distribution for all six years at issue currently by order dated February 17, 2012
The Judges determine that a Phase II controversy exists as to the distribution of the retained cable royalty funds deposited for broadcast years 2004 through 2009, inclusive. On July 27, 2012, three Phase I participants, Joint Sports Claimants, Program Suppliers, and Devotional Claimants filed a Joint Motion to Initiate Phase II Proceedings (Joint Motion), representing that all other Phase I category royalty recipients had resolved their remaining controversies and seeking to consolidate the proceeding for years 2004–05 with
Independent Producers Group (IPG) objected to the motion, citing unresolved distribution of royalties deposited for royalty years antedating 2004 and asserting that the earlier distributions should be completed before initiating a proceeding for the funds at issue in this proceeding. In the interim, between the Joint Motion and this notice, the Judges have resolved or scheduled for resolution all issues remaining in the earlier proceedings. IPG's objection to initiating this Phase II proceeding is not persuasive as it is no longer germane.
In light of the outstanding Phase II controversies with respect to cable royalties for 2004 to 2009, inclusive, the Judges hereby
Any interested party must file a Petition to Participate (PTP) in accordance with 37 CFR 351.1(b)(2). PTPs submitted by interested parties whose claims do not exceed $1,000 must contain a statement that the party will not seek a distribution of more than $1,000. The Judges will accept PTPs for claims not exceeding $1,000 without a filing fee. The Judges will reject the PTP of any party asserting a claim in excess of $1,000 that is not accompanied by the filing fee of $150. The filing fee must be paid by check or money order payable to the “Copyright Royalty Board.” If a check is returned for insufficient funds, the corresponding Petition to Participate will be dismissed.
To participate in this Phase II proceeding, a party, other than an individual, must be represented by an attorney.
The Judges will address scheduling and further procedural matters after Petitions to Participate are filed.
Copyright Royalty Board, Library of Congress.
Notice announcing commencement of Phase II distribution proceeding and request for Petitions to Participate.
The Copyright Royalty Judges (Judges) announce the commencement of a proceeding to determine the Phase II distribution of royalties deposited by satellite carriers for a statutory license to retransmit over-the-air television broadcast stations. A party wishing to participate in this distribution proceeding must file its Petition to Participate and the accompanying $150 filing fee, if applicable, by the deadline announced in this notice.
Petitions to Participate are due on or before September 16, 2013.
Participants must submit a Petition to Participate in a hard-copy original, with five paper copies and an electronic copy in Portable Document Format (PDF) on a Compact Disc, along with the $150 filing fee, to the Copyright Royalty Board by either mail or hand delivery. Participants MAY NOT submit Petitions to Participate and the $150 filing fee by an overnight delivery service other than the U.S. Postal Service Express Mail. If participants choose to use U.S. Postal Service (including overnight delivery), they must address their submissions to: Copyright Royalty Board, P.O. Box 70977, Washington, DC 20024–0977. If participants choose hand delivery by a private party, they must deliver the submissions to the Library of Congress, James Madison Memorial Building, LM–401, 101 Independence Avenue SE., Washington, DC 20559–6000. If participants choose delivery by a commercial courier, they must deliver the submissions to the Congressional Courier Acceptance Site, located at 2nd and D Street, NE., Washington, DC. The envelope must be addressed to: Copyright Royalty Board, Library of Congress, James Madison Memorial Building, LM–403, 101 Independence Avenue SE., Washington, DC 20559–6000.
LaKeshia Keys, CRB Program Specialist, by telephone at (202) 707–7658 or email at
Twice each calendar year, satellite carriers must deposit royalty payments with the Copyright Office for the statutory license granting the privilege of retransmitting over-the-air television broadcast stations.
The royalties for each calendar year at issue are distributed in two phases. At Phase I, the royalties are divided among representatives of categories of copyrightable content (
For each of the royalty years at issue in this proceeding, the Judges have published in the
On August 29, 2012, representatives of certain Phase I categories of claimants filed a Joint Motion to Initiate Phase II Proceedings for the Distribution of the 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008, and 2009 Satellite Royalty Funds (Joint Motion). The parties making the request are: Joint Sports Claimants (JSC), Program Suppliers, Devotional Claimants,
With respect to the 1999 funds, after the conclusion of a protracted California state lawsuit initiated by IPG, the Judges resolved all remaining issues,
Similarly, with respect to the issue of consolidating a decade's distributions, the Judges are confident that, after three- to 14- years of discussion, negotiation, and professional courtesies, what remains for judicial consideration is a manageable array of questions, both for counsel representing the parties and for the Judges. Further, the statutory calendar for distribution proceedings provides ample time for discovery, continuing negotiation, and possible settlement of remaining controversies.
No party questioned the existence of controversies relating to the satellite funds at issue. IPG's objections to commencement of the proceeding and to the aggregation of the royalty years for determination are not persuasive. The Judges, therefore, hereby announce the commencement of a Phase II distribution proceeding for satellite royalties deposited between 1999 and 2009, inclusive, pursuant to 17 U.S.C. 803(b)(1) and request Petitions to Participate (PTP) from interested parties.
The assigned Docket Number for this consolidated proceeding shall be 2012–7 CRB SD 1999–2009 (Phase II). To participate in this Phase II proceeding, a party, other than an individual, must be represented by an attorney.
Parties in interest must file PTPs in accordance with 37 CFR 351.1(b). Interested parties asserting claims in excess of $1,000 must include with the PTP a filing fee of $150 in the form of check or money order payable to “Copyright Royalty Board”. If a participant's claim does not exceed $1,000 and if the PTP includes a statement that the participant will not seek a distribution in excess of $1,000, the participant need not submit the filing fee.
The Judges will address scheduling and further procedural matters after receiving Petitions to Participate.
National Credit Union Administration (NCUA).
Request for comment.
The NCUA intends to submit the following information collection to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 USC Chapter 35). This information collection notice is published to obtain comments from the public. This is related to NCUA's regulation on the circumstances and conditions under which Federal credit union (FCU) members may inspect and copy the FCU's books, records, and minutes of meetings.
Comments will be accepted until October 15, 2013.
Interested parties are invited to submit written comments to the NCUA Contact and the OMB Reviewer listed below:
Requests for additional information, a copy of the information collection request, or a copy of submitted comments should be directed to Tracy Crews at the National Credit Union Administration, 1775 Duke Street, Alexandria, VA 22314–3428, or at (703) 518–6444.
NCUA is reinstating a previously approved collection of information for 12 CFR § 701.3, Member Inspection of Credit Union Books, Records, and Minutes. Section 701.3 is NCUA's regulation on the circumstances and conditions under which FCU members may inspect and copy the FCU's books, records, and minutes of meetings. The collection of information requirements apply to FCU members seeking inspection and copying of the FCU's records and FCUs that receive such member requests. To obtain access to records, members are required to submit a petition to the FCU, stating a proper purpose for inspection and signed by at least one percent of the members, with a minimum of 20 and a maximum of 500 members. Section 701.3 requires that the FCU must permit inspection of relevant records if it receives such a petition. The members of an FCU own it, and the disclosure requirements placed on an FCU are necessary to ensure transparency and protect the rights of the members. The FCU records disclosed to members as a result of a petition are used by the members to protect their ownership and financial interests. The petition signatures collected by each FCU are used by the FCU to verify the membership status of each petitioner.
The information collection only arises upon a member request. In NCUA's experience, members do not use this petition authority often. NCUA estimates that, on an annual basis and across all FCUs, there will be only approximately five member petitions requesting inspection of FCU records. NCUA estimates that it will take a group of member-petitioners (each group treated as one respondent) approximately ten hours to prepare a petition and submit it to the FCU. Five groups of member-petitioners times ten hours per respondent equals 50 annual burden hours. NCUA estimates that it will take an FCU that receives a petition approximately 20 hours to evaluate the petition, locate the relevant documents, and make them available for inspection
NCUA requests that you send your comments on the information collection requirements under section 701.3 to the locations listed in the addresses section. Your comments should address: (a) The necessity of the information collection for the proper performance of NCUA, including whether the information will have practical utility; (b) the accuracy of our estimate of the burden (hours and cost) of the collection of information, including the validity of the methodology and assumptions used; (c) ways we could enhance the quality, utility, and clarity of the information to be collected; and (d) ways we could minimize the burden of the collection of the information on the respondents such as through the use of automated collection techniques or other forms of information technology. It is NCUA's policy to make all comments available to the public for review.
National Credit Union Administration (NCUA).
Request for comment.
The NCUA intends to submit the following information collection to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. Chapter 35). This information collection notice is published to obtain comments from the public. This collection of information is related to NCUA's regulation on nondiscrimination requirements in real estate-related lending.
Comments will be accepted until October 15, 2013.
Interested parties are invited to submit written comments to the NCUA Contact and the OMB Reviewer listed below:
NCUA Contact: Tracy Crews, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314–3428, Fax No. 703–837–2861, Email:
OMB Contact: Office of Management and Budget, ATTN: Desk Officer for the National Credit Union Administration, Office of Information and Regulatory Affairs, Washington, DC 20503.
Requests for additional information, a copy of the information collection request, or a copy of submitted comments should be directed to Tracy Crews at the National Credit Union Administration, 1775 Duke Street, Alexandria, VA 22314–3428, or at (703) 518–6444.
NCUA is reinstating a previously approved collection of information for 12 CFR 701.31, Nondiscrimination Requirements in Real Estate-Related Lending, Appraisals, and Advertising. Section 701.31 implements requirements of the Fair Housing Act, 42 U.S.C. 3601
The real estate appraisal is an integral part of most real estate-related loan transactions. The appraisal, factors affecting the appraisal, and record retention are all routinely included in most real estate-related loan transactions as a usual and customary industry practice. Therefore, any cost in time for the FCU is minimal. NCUA estimates that the time required for this collection of information is approximately one hour per year for each FCU. As of July 2, 2013, there were 4,220 FCUs that could make real estate-related loans. 1 hour × 4,220 respondents/recordkeepers = 4,220 total annual burden hours. NCUA does not believe that FCUs will incur any additional costs as a result of the recordkeeping requirement.
NCUA requests that you send your comments on the information collection requirement under section 701.31 to the locations listed in the addresses section. Your comments should address: (a) The necessity of the information collection for the proper performance of NCUA, including whether the information will have practical utility; (b) the accuracy of our estimate of the burden (hours and cost) of the collection of information, including the validity of the methodology and assumptions used; (c) ways we could enhance the quality, utility, and clarity of the information to be collected; and (d) ways we could
National Credit Union Administration (NCUA).
Request for comment.
The NCUA intends to submit the following information collection to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 USC Chapter 35). This information collection is not from any new requirements. It is a reinstatement of a prior collection related to NCUA's leasing rule. The rule requires a federal credit union engaged in leasing to obtain or have on file financial documentation demonstrating that the guarantor of an estimated residual value can meet the guarantee. This information collection is being published to obtain comments from the public.
Comments will be accepted until October 15, 2013.
Interested parties are invited to submit written comments to the NCUA Contact and the OMB Reviewer listed below:
Requests for additional information, a copy of the information collection request, or a copy of submitted comments should be directed to Tracy Crews at the National Credit Union Administration, 1775 Duke Street, Alexandria, VA 22314–3428, or at (703) 518–6444.
NCUA is amending and reinstating the collection for 3133–0151 for NCUA's leasing regulation. 12 CFR part 714. In a leasing situation, the NCUA requires the financially responsible party to guarantee the excess when the residual value of a lease will exceed 25% of the original cost of the leased property. 12 CFR 714.5. The guarantor may be the manufacturer or an insurance company.
The federal credit union must obtain and have on file financial documentation demonstrating that the guarantor has the resources to meet the guarantee. If a manufacturer is involved, the federal credit union must review financial statements for the period that would establish a reasonable financial trend. If an insurance company is involved, it must have a major company rating of at least a B+. The federal credit union will use the information as part of the risk assessment process to analyze and evaluate the financial capabilities and resources of a party that guarantees the residual value used in a leasing arrangement.
There are currently 35 federal credit unions offering leases. Most leases are offered with residual payments of less than 25% of the original leased property value. Therefore, there are a limited number of leases requiring a guarantee. This is estimated to be 5 transactions per year for federal credit unions offering leases. The hourly burden per transaction is approximately 2 hours. Completing the financial review requires a combination of clerical and officer time which is estimated to be a blended hourly rate of $60. Therefore, the estimated annual hourly burden for federal credit unions offering leases is 350 hours, at an hourly cost of $60 resulting in an estimated annual financial burden of $21,000. The burden is minimal and offset by the additional benefit of mitigating and reducing the potential for losses to the credit union.
The NCUA requests that you send your comments on this collection to the location listed in the
Nuclear Regulatory Commission.
Policy statements; extension of comment period.
The U.S. Nuclear Regulatory Commission (NRC) is extending the comment period of a notice that was published in the
The comment period has been extended and expires on September 16, 2013. Comments received after this date will be considered if it is practical to do so, but the NRC is able to assure consideration only for comments received on or before this date.
You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
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•
•
•
•
For additional direction on accessing information and submitting comments, see “Accessing Information and Submitting Comments” in the
Lisa Dimmick, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415–0694, email:
Please refer to Docket ID NRC–2013–0081 when contacting the NRC about the availability of information for the proposed revisions of the policy statements. You may access publicly-available information related to the proposed revisions of the policy statements by any of the following methods:
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Please include Docket ID NRC–2013–0081 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or
For the Nuclear Regulatory Commission.
U.S. Office of Personnel Management.
60-Day Notice and request for comments.
The Retirement Services, Office of Personnel Management (OPM) offers the general public and other Federal agencies the opportunity to comment on an extension, without change, of a currently approved information collection request (ICR) 3206–0190, Application for Deferred or Postponed Retirement: Federal Employees Retirement System, RI 92–19. As required by the Paperwork Reduction Act of 1995, (Pub. L. 104–13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104–106), OPM is soliciting comments for this collection. The Office of Management and Budget is particularly interested in comments that:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of functions of OPM, including whether the information will have practical utility;
2. Evaluate the accuracy of OPM's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
Comments are encouraged and will be accepted until October 15, 2013. This process is conducted in accordance with 5 CFR 1320.1.
Interested persons are invited to submit written comments on the proposed information collection to the U.S. Office of Personnel Management, Retirement Services, Union Square 370, 1900 E Street NW., Washington, DC 20415–3500, Attention: Alberta Butler or sent by email to
A copy of this ICR, with applicable supporting documentation, may be obtained by contacting the U.S. Office of Personnel Management, Retirement Services Publications Team, 1900 E Street NW., Room 4445, Washington, DC 20415, Attention: Cyrus S. Benson, or sent by email to
RI 92–19 is used by separated employees to apply for either a deferred or a postponed FERS annuity benefit.
U.S. Office of Personnel Management.
Notice of Medically Underserved Areas for 2014.
The U.S. Office of Personnel Management (OPM) has completed its annual determination of the states that qualify as Medically Underserved Areas under the Federal Employees Health Benefits (FEHB) Program for calendar year 2014. This is necessary to comply with a provision of the FEHB law that mandates special consideration for enrollees of certain FEHB plans who receive covered health services in states with critical shortages of primary care physicians. Accordingly, for calendar year 2013, the following 14 states are considered as Medically Underserved Areas under the FEHB Program: Alabama, Arizona, Idaho, Illinois, Louisiana, Mississippi, Missouri, New Mexico, North Dakota, Oklahoma, South Carolina and Wyoming. The states of Montana, and South Dakota are removed as Medically Underserved Area in 2014.
Lynelle T. Frye, 202–606–0004.
FEHB law (5 U.S.C. 8902(m)(2)) requires special consideration for enrollees of certain FEHB plans who receive covered health services in states with critical shortages of primary care physicians. This section of the law requires that a state be designated as a Medically Underserved Area if 25 percent or more of the population lives in an area designated by the Department of Health and Human Services (HHS) as a primary medical care manpower shortage area. Such states are designated as Medically Underserved Areas for purposes of the FEHB Program, and the law requires non-HMO FEHB plans to reimburse beneficiaries, subject to their contract terms, for covered services obtained from any licensed provider in these states.
FEHB regulations (5 CFR 890.701) require OPM to make an annual determination of the states that qualify as Medically Underserved Areas for the next calendar year by comparing the latest HHS state-by-state population counts on primary medical care manpower shortage areas with U.S. Census figures on state resident populations.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend: (1) Exchange Rule 2.5 to: (i) Outline the continuing education requirements for Authorized Traders
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The Exchange proposes to amend: (1) Rule 2.5 to: (i) Outline the continuing education requirements for Authorized Traders of Members registered solely as Proprietary Traders by having successfully completed the Series 56 examination; and (ii) make a clarifying change to the Interpretation and Policy .06; and (2) its Fee Schedule to include fees for the Series 56 examination and its related continuing education requirements.
On February 1, 2012, the Exchange amended its rules to recognize a new category of limited representative registration for Proprietary Traders
The Exchange permits the Series 56 examination for Proprietary Traders that engage solely in proprietary trading on the Exchange so long as certain conditions are met. First, the Member must be a proprietary trading firm.
The Exchange now proposes to amend Interpretation and Policy .04 to Rule 2.5 to outline the continuing education requirements for Authorized Traders of Members registered solely as Proprietary Traders by having successfully completed the Series 56 examination. Like the Series 56 exam, FINRA is to administer the continuing education program on behalf of the Exchange. Proprietary Traders who hold the Series 56 registration pursuant to Interpretation and Policy .04 to Rule 2.5 would be required to complete the related continuing education administered by FINRA on behalf of the Exchange known as the S501. Authorized Traders of Members who hold the Series 7 registration would continue to complete the Regulatory Element for Continuing Education Requirement (“Regulatory Element”) known as the S101.
The Exchange also proposes to amend Interpretation and Policy .04 to Rule 2.5 to apply the same criteria to the S501 as it currently requires for the S101 as part of the Regulatory Element. First, like the Regulatory Element, the S501 must be completed within 120 days after the respective registration anniversary date. A person's initial registration date, also known as the “base date,” shall establish the cycle of anniversary dates. Second, Series 56 registrants who have not completed the S501 within the prescribed time frames will have their registrations deemed inactive until such time as such requirements have been
Similar to the requirements for the Regulatory Element,
Like the Regulatory Element, the retaking of the S501 must commence within 120 days of the Proprietary Trader-Series 56 license holder becoming subject to the statutory disqualification, in the case of (1) above, or the disciplinary action becoming final, in the case of (2) and (3) above. The date of the disciplinary action shall be treated as such person's new base date with the Exchange.
Any Proprietary Trader-Series 56 license holder who has terminated association with a Member and who has, within two years of the date of termination, become reassociated in a registered capacity with a Member shall satisfy the S501 at such intervals that may apply (second anniversary and every three years thereafter) based on the initial registration anniversary date rather than based on the date of reassociation in a registered capacity.
The Exchange proposes to include the Series 56 continuing education requirement in its rules to ensure Authorized Traders of Members maintain specified levels of competence and knowledge generally applicable to proprietary trading, thereby enhancing the quality of Authorized Traders on the Exchange. Thus, the codification of these requirements in the proposed amendments to Rule 2.5 makes clear to Members their requirements related to the Series 56 exam, including applicable continuing education requirements.
The Exchange proposes to implement the Series 56 continuing education program upon availability in WebCRD®, the central licensing and registration system operated by FINRA (“WebCRD”).
The Exchange proposes to delete unnecessary language from Interpretation and Policy .06 to Rule 2.5. Currently, Interpretation and Policy .06(1) of Rule 2.5 defines a proprietary trading firm. As part of the definition, the Member must not be required by Section 15(b)(8) of the Act
The Exchange proposes to add to its Fee Schedule a $195 fee per person, per Series 56 examination and a $60 per person, per session fee for the related continuing education. The Exchange's Fee Schedule does not currently set forth the fees applicable for the Series 7 and Regulatory Element as these programs are within FINRA's jurisdiction and collected by FINRA from its members. On the contrary, the Series 56 and its continuing education requirements apply to Members that are not required by Section 15(b)(8) of the Act
The fees are designed to reflect the costs incurred in maintaining and developing the examination and continuing education program to ensure their content is and continues to be adequate in testing the competence and knowledge generally applicable to proprietary trading.
The Exchange believes that its proposal to require continuing education for Authorized Traders of Members that hold the Proprietary Trader-Series 56 license is consistent with Section 6(b) of the Act,
In addition, the Exchange believes that the proposed rule change is consistent with the principles of Section 11A(a)(1)(C)(ii) of the Act
The Exchange believes that the proposal to delete unnecessary language from Interpretation and Policy .06 to Rule 2.5 is consistent with Section 6(b) of the Act
The Exchange also believes that the proposed examination and continuing education fees are consistent with the objectives of Section 6 of the Act,
The Exchange does not believe that its proposal to require continuing education for Authorized Traders of Members that hold the Series 56 license will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended, because Proprietary Traders must hold a Series 56 license and complete the required continuing education regardless of the exchange with which they are registered. The proposed rule change will not impose any burden on intramarket competition as all Authorized Traders of Members that are Proprietary Traders are required to pass the Series 56 exam and complete the related continuing education as outlined in Exchange Rule 2.5.
The proposal to delete unnecessary language from Interpretation and Policy .06(1) to Rule 2.5 does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. This language is superfluous as the Exchange does not, in practice, require a proprietary trading firm to also be a member of another exchange.
The Exchange also does not believe that the proposed examination and continuing education fees will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes that its proposal would neither increase nor decrease intramarket competition because the fees would apply uniformly to all Members. In addition, the Exchange believes that its proposal would neither increase nor decrease intermarket competition because other exchanges will be assessing identical fees to be collected by FINRA for the Series 56 exam and continuing education program.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Because the foregoing proposed rule does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
The Exchange has requested that the Commission waive the 30-day operative delay. The proposed rule change specifies the continuing education requirements for Authorized Traders of Members registered solely as proprietary traders by having passed the Series 56 examination; deletes unnecessary language from Interpretation and Policy .06 of Exchange Rule 2.5; and adds to the Exchange's Fee Schedule the fees for the Series 56 examination and the S501. Waiver of the operative delay would allow the Exchange to clarify its rules and implement the proposed rule change without delay once the Series 56 examination fee, S501 continuing education program and the related fee are available in WebCRD, enabling its Members to comply with their
At any time within 60 days of the filing of this proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission will institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
NASDAQ is proposing to assume operational responsibility for certain surveillance activity currently performed by the Financial Industry Regulatory Authority (“FINRA”) under the Exchange's authority and supervision.
In its filing with the Commission, NASDAQ included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
Section 6 of the Act requires that national securities exchanges enforce their members' compliance with federal securities laws and rules as well as the exchanges' own rules.
Notwithstanding its use of FINRA, the Exchange has also retained operational responsibility for a number of surveillance and other regulatory functions including real-time surveillance, qualification of companies listed on NASDAQ and most surveillance related to its affiliated options markets. Historically NASDAQ retained operational responsibility in areas where NASDAQ's expertise regarding its own markets, technology and listed companies enhanced regulation. For the reasons outlined
• Manipulation patterns that monitor solely NASDAQ activity, including patterns that monitor the Exchange's opening and closing crosses and compliance with minimum bid listing requirements, and
• monitoring of compliance by member firms with elements of Regulation M and NASDAQ Rule 4619 compliance.
FINRA operates a full suite of equities surveillance patterns on behalf of NASDAQ that covers many types of potential misconduct. In recent years FINRA, with NASDAQ's oversight and approval, modified a number of these NASDAQ patterns to incorporate data from markets operated by NYSE Euronext. NASDAQ plans to continue to participate in this cross-market surveillance performed by FINRA, some of which focuses on identifying similar violative activity, which will not be impacted by this proposal. However, a limited number of FINRA's patterns only review NASDAQ market data and detect conduct occurring only on the Exchange. These patterns incorporate unique elements of NASDAQ's market structure and focus on trading activity in the NASDAQ opening and closing cross process, as well as NASDAQ minimum bid listing standards, an area already regulated by NASDAQ. An additional pattern monitors attempts to manipulate NASDAQ using small orders to advantage larger orders placed on the opposite side of the NASDAQ market at an improved price (often referred to as “odd lot manipulation” or “mini-manipulation”).
NASDAQ believes that its expertise in its own market structure coupled with its continued monitoring of these activities in real-time will enable it to enhance existing patterns to better detect improper activity on its market. In addition, these patterns, the underlying rules, and analytical requirements are similar to patterns NASDAQ regulatory personnel already operate for affiliated options markets. For example, NASDAQ regulatory personnel routinely monitor affiliated options markets for market closing activity and other patterns designed to detect various types of price influence.
NASDAQ also proposes to assume operational responsibility for real-time monitoring of compliance by market makers that are members of an underwriting syndicate with the quoting and trading restrictions in Rules 101 and 103 under the Act
NASDAQ plans to operate the surveillance patterns referenced above in the SMARTS surveillance system. SMARTS is a state-of-the-art surveillance platform used in 26 markets and by 9 government regulators around the world. NASDAQ plans to use SMARTS for both real-time monitoring and the limited non-real time surveillance covered by this proposal. Running the patterns in real-time will permit an expedited review of critical alerts that previously would not have been completed the same day. It will now be easier to quickly compare unusual activity noted as part of NASDAQ's operations monitoring of market activity with surveillance alerts. NASDAQ anticipates being able to refer a broader cross section of problematic activity to FINRA for expedited review than was previously the case.
NASDAQ Regulation intends to leverage its existing staff of experienced analysts, lawyers, programmers and market structure experts to perform the new functions covered by this proposal. This group is working with NASDAQ's regulatory technology group to develop and test the surveillance patterns that will run in the SMARTS system. This distribution of responsibilities was the result of detailed discussions between NASDAQ and FINRA that focused on reallocating responsibilities based on the core competencies of each organization. NASDAQ Regulation and FINRA have developed comprehensive plans covering the transition and the groups have met regularly over more than nine months to ensure a smooth transition of the work and prevent any gaps in surveillance coverage. NASDAQ and FINRA anticipate a phased transition of patterns, with NASDAQ formally relieving FINRA of operational responsibility for each pattern once testing, training, procedures and other preparations are completed. FINRA will retire each pattern once relieved of responsibility. After the transition, NASDAQ Regulation will review surveillance alerts and refer potentially violative conduct to FINRA using existing processes and systems. FINRA will continue to have operational responsibility for the vast majority of surveillances involving NASDAQ's equity market as well as examination and enforcement matters, subject to NASDAQ's supervision and ultimate responsibility.
The provisions of NASDAQ Rule 0150 require that NASDAQ obtain Commission approval if regulatory functions subject to the regulatory services agreement in effect at the time NASDAQ became a national securities exchange are no longer performed by FINRA or another independent self-regulatory organization. For the reasons stated above, NASDAQ believes that the reassignment of operational responsibility for a limited number of equities surveillance patterns will further its regulatory program and benefit investors and the markets. Commission approval of the proposal would allow NASDAQ OMX to better leverage data and systems across its three equities exchanges, including NASDAQ OMX PHLX, an affiliate of NASDAQ, that does not have an equivalent to Rule 0150 requiring Commission approval for this reallocation.
In addition, NASDAQ notes that its proposal is consistent with, but more limited than, surveillance work performed by other national securities exchanges. The SEC has previously approved several applications for registration as national securities exchanges in which the SRO proposed to perform its own surveillance function. For example, the SEC approved BATS Exchange's application where BATS performed most surveillance for its markets, finding in its approval order that it was consistent with the Act for BATS Exchange to contract with FINRA to perform regulatory functions limited to “examination, enforcement, and
NASDAQ believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
NASDAQ will continue to refer potentially violative conduct to FINRA for further review. Moreover, FINRA will continue to perform the vast majority of surveillance activity for NASDAQ's equities markets, in many cases using patterns that incorporate data from other market centers. FINRA will also perform examination and enforcement work, subject to NASDAQ's supervision and ultimate responsibility.
NASDAQ also believes the proposal is consistent with the Act because, as the Commission has made clear on many occasions, an SRO cannot delegate its ultimate responsibility for surveillance in the absence of an SEC-approved agreement under Section 17(d)(2) of the Act, and therefore must remain involved and responsible for its regulatory program. In addition, NASDAQ notes that its proposal is consistent with, but more limited than, surveillance work performed by other national securities exchanges. As noted above, the SEC has previously approved several applications for registration as national securities exchanges in which the SRO proposed to perform its own surveillance function.
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
Within 45 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange is proposing to assume operational responsibility for certain surveillance activity currently performed by the Financial Industry Regulatory Authority (“FINRA”) under the Exchange's authority and supervision.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Section 6 of the Act requires that national securities exchanges enforce their members' compliance with federal securities laws and rules as well as the exchanges' own rules.
Notwithstanding its use of FINRA, the Exchange has also retained operational responsibility for a number of surveillance and other regulatory functions including real-time surveillance, qualification of companies listed on NASDAQ and most surveillance related to its affiliated options markets. Historically BX retained operational responsibility in areas where BX's expertise regarding its own markets, technology and listed companies enhanced regulation. For the reasons outlined below, BX now proposes to reallocate operational responsibility from FINRA to BX Regulation for a limited number of equities surveillance patterns and related review functions focused on:
• Manipulation patterns that monitor solely BX activity, including patterns that monitor activity that might impact the opening and closing cross process on NASDAQ and compliance with minimum bid listing requirements by companies listed on NASDAQ, and
• Monitoring of compliance by NASDAQ member firms with elements of Regulation M and NASDAQ Rule 4619 compliance, which will include data from BX.
FINRA operates a full suite of equities surveillance patterns on behalf of BX that covers many types of potential misconduct. In recent years FINRA, with BX's oversight and approval, modified a number of these BX patterns to incorporate data from markets operated by NYSE Euronext. BX plans to continue to participate in this cross-market surveillance performed by FINRA, some of which focuses on identifying similar violative activity, which will not be impacted by this proposal. However, a limited number of FINRA's patterns only review BX market data and detect conduct occurring only on the Exchange. These patterns incorporate unique elements of BX's market structure and focus on trading activity in the BX that might impact the opening and closing cross process on NASDAQ,
BX believes that its expertise in its own market structure coupled with its continued monitoring of these activities in real-time will enable it to enhance existing patterns to better detect improper activity on its market. In addition, these patterns, the underlying rules, and analytical requirements are similar to patterns BX regulatory personnel already operate for affiliated options markets. For example, BX regulatory personnel routinely monitor affiliated options markets for market closing activity and other patterns designed to detect various types of price influence.
In a separate filing NASDAQ also proposes to assume operational responsibility for real-time monitoring of compliance by market makers that are members of an underwriting syndicate with the quoting and trading restrictions in Rules 101 and 103 under the Act
BX plans to operate the surveillance patterns referenced above in the SMARTS surveillance system. SMARTS is a state-of-the-art surveillance platform used in 26 markets and by 9 government regulators around the world. BX plans to use SMARTS for both real-time monitoring and the limited non-real time surveillance covered by this proposal. Running the patterns in real-time will permit an expedited review of critical alerts that previously would not have been completed the same day. It will now be easier to quickly compare unusual activity noted as part of BX's operations monitoring of market activity with surveillance alerts. BX anticipates being able to refer a broader cross section of problematic activity to FINRA for expedited review than was previously the case.
BX Regulation intends to leverage its existing staff of experienced analysts, lawyers, programmers and market structure experts to perform the new functions covered by this proposal. This group is working with BX's regulatory technology group to develop and test the surveillance patterns that will run in the SMARTS system. This distribution of responsibilities was the result of detailed discussions between BX and FINRA that focused on reallocating responsibilities based on the core competencies of each organization. BX Regulation and FINRA have developed comprehensive plans covering the transition and the groups have met regularly over more than nine months to ensure a smooth transition of the work and prevent any gaps in surveillance coverage. BX and FINRA anticipate a phased transition of patterns, with BX formally relieving FINRA of operational responsibility for each pattern once testing, training, procedures and other preparations are completed. FINRA will retire each pattern once relieved of responsibility. After the transition, BX Regulation will review surveillance alerts and refer potentially violative conduct to FINRA using existing processes and systems. FINRA will continue to have operational responsibility for the vast majority of surveillances involving BX's equity market as well as examination and enforcement matters, subject to BX's supervision and ultimate responsibility.
The provisions of BX Rule 0150 require that BX obtain Commission approval if regulatory functions subject to the regulatory services agreement in effect at the time BX first executed the agreement in 2008 are no longer performed by FINRA or another independent self-regulatory organization. For the reasons stated above, BX believes that the reassignment of operational responsibility for a limited number of equities surveillance patterns will further its regulatory program and benefit investors and the markets. Commission approval of the proposal would allow NASDAQ OMX to better leverage data and systems across its three equities exchanges, including NASDAQ OMX PHLX, an affiliate of BX, that does not have an equivalent to Rule 0150 requiring Commission approval for this reallocation.
In addition, BX notes that its proposal is consistent with, but more limited than, surveillance work performed by other national securities exchanges. The SEC has previously approved several applications for registration as national securities exchanges in which the SRO proposed to perform its own surveillance function. For example, the SEC approved BATS Exchange's application where BATS performed most surveillance for its markets, finding in its approval order that it was consistent with the Act for BATS Exchange to contract with FINRA to perform regulatory functions limited to “examination, enforcement, and disciplinary functions.”
BX believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
BX will continue to refer potentially violative conduct to FINRA for further review. Moreover, FINRA will continue to perform the vast majority of surveillance activity for BX's equities market, in many cases using patterns that incorporate data from other market centers. FINRA will also perform examination and enforcement work, subject to BX's supervision and ultimate responsibility.
BX also believes the proposal is consistent with the Act because, as the Commission has made clear on many occasions, an SRO cannot delegate its ultimate responsibility for surveillance in the absence of an SEC-approved agreement under Section 17(d)(2) of the Act, and therefore must remain involved and responsible for its regulatory program. In addition, BX notes that its proposal is consistent with, but more limited than, surveillance work performed by other national securities exchanges. As noted above, the SEC has previously approved several applications for registration as national securities exchanges in which the SRO proposed to perform its own surveillance function.
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
Within 45 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend: (1) Exchange Rule 2.5 to: (i) outline the continuing education requirements for Authorized Traders
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The Exchange proposes to amend: (1) Rule 2.5 to: (i) outline the continuing
On February 1, 2012, the Exchange amended its rules to recognize a new category of limited representative registration for Proprietary Traders
The Exchange permits the Series 56 examination for Proprietary Traders that engage solely in proprietary trading on the Exchange so long as certain conditions are met. First, the Member must be a proprietary trading firm.
The Exchange now proposes to amend Interpretation and Policy .04 to Rule 2.5 to outline the continuing education requirements for Authorized Traders of Members registered solely as Proprietary Traders by having successfully completed the Series 56 examination. Like the Series 56 exam, FINRA is to administer the continuing education program on behalf of the Exchange. Proprietary Traders who hold the Series 56 registration pursuant to Interpretation and Policy .04 to Rule 2.5 would be required to complete the related continuing education administered by FINRA on behalf of the Exchange known as the S501. Authorized Traders of Members who hold the Series 7 registration would continue to complete the Regulatory Element for Continuing Education Requirement (“Regulatory Element”) known as the S101.
The Exchange also proposes to amend Interpretation and Policy .04 to Rule 2.5 to apply the same criteria to the S501 as it currently requires for the S101 as part of the Regulatory Element. First, like the Regulatory Element, the S501 must be completed within 120 days after the respective registration anniversary date. A person's initial registration date, also known as the “base date,” shall establish the cycle of anniversary dates. Second, Series 56 registrants who have not completed the S501 within the prescribed time frames will have their registrations deemed inactive until such time as such requirements have been satisfied. Any person whose registration has been deemed inactive shall cease all activities as a Proprietary Trader and will be prohibited from performing any duties and functioning in any capacity requiring registration. A registration that is inactive for a period of two years will be administratively terminated. A person whose registration is terminated may reactivate the registration only by reapplying for registration under the Exchange rules.
Similar to the requirements for the Regulatory Element,
Like the Regulatory Element, the retaking of the S501 must commence within 120 days of the Proprietary Trader—Series 56 license holder becoming subject to the statutory disqualification, in the case of (1) above, or the disciplinary action becoming final, in the case of (2) and (3) above. The date of the disciplinary action shall be treated as such person's new base date with the Exchange.
Any Proprietary Trader—Series 56 license holder who has terminated association with a Member and who has, within two years of the date of termination, become reassociated in a registered capacity with a Member shall satisfy the S501 at such intervals that may apply (second anniversary and every three years thereafter) based on the initial registration anniversary date rather than based on the date of reassociation in a registered capacity.
The Exchange proposes to include the Series 56 continuing education requirement in its rules to ensure Authorized Traders of Members maintain specified levels of competence and knowledge generally applicable to proprietary trading, thereby enhancing the quality of Authorized Traders on the Exchange. Thus, the codification of these requirements in the proposed amendments to Rule 2.5 makes clear to Members their requirements related to the Series 56 exam, including applicable continuing education requirements.
The Exchange proposes to implement the Series 56 continuing education program upon availability in WebCRD®, the central licensing and registration system operated by FINRA (“WebCRD”).
The Exchange proposes to delete unnecessary language from Interpretation and Policy .06 to Rule 2.5. Currently, Interpretation and Policy .06(1) of Rule 2.5 defines a proprietary trading firm. As part of the definition, the Member must not be required by Section 15(b)(8) of the Act
The Exchange proposes to add to its Fee Schedule a $195 fee per person, per Series 56 examination and a $60 per person, per session fee for the related continuing education. The Exchange's Fee Schedule does not currently set forth the fees applicable for the Series 7 and Regulatory Element as these programs are within FINRA's jurisdiction and collected by FINRA from its members. On the contrary, the Series 56 and its continuing education requirements apply to Members that are not required by Section 15(b)(8) of the Act
The fees are designed to reflect the costs incurred in maintaining and developing the examination and continuing education program to ensure their content is and continues to be adequate in testing the competence and knowledge generally applicable to proprietary trading.
The Exchange believes that its proposal to require continuing education for Authorized Traders of Members that hold the Proprietary Trader—Series 56 license is consistent with Section 6(b) of the Act,
In addition, the Exchange believes that the proposed rule change is consistent with the principles of Section 11A(a)(1)(C)(ii) of the Act
Clarification to Interpretation and Policy .06 to Rule 2.5
The Exchange believes that the proposal to delete unnecessary language from Interpretation and Policy .06 to Rule 2.5 is consistent with Section 6(b) of the Act
The Exchange also believes that the proposed examination and continuing education fees are consistent with the objectives of Section 6 of the Act,
The Exchange does not believe that its proposal to require continuing education for Authorized Traders of Members that hold the Series 56 license will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended, because Proprietary Traders must hold a Series 56 license and complete the required continuing education regardless of the exchange with which they are registered. The proposed rule change will not impose any burden on intramarket competition as all Authorized Traders of Members that are Proprietary Traders are required to pass the Series 56 exam and complete the related continuing education as outlined in Exchange Rule 2.5.
The proposal to delete unnecessary language from Interpretation and Policy .06(1) to Rule 2.5 does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. This language is superfluous as the Exchange does not, in practice, require a proprietary trading firm to also be a member of another exchange.
The Exchange also does not believe that the proposed examination and continuing education fees will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes that its proposal would neither increase nor decrease intramarket competition because the fees would apply uniformly to all Members. In addition, the Exchange believes that its proposal would neither increase nor decrease intermarket competition because other exchanges will be assessing identical fees to be collected by FINRA for the Series 56 exam and continuing education program.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Because the foregoing proposed rule does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
The Exchange has requested that the Commission waive the 30-day operative delay. The proposed rule change specifies the continuing education requirements for Authorized Traders of Members registered solely as proprietary traders by having passed the Series 56 examination; deletes unnecessary language from Interpretation and Policy .06 of Exchange Rule 2.5; and adds to the Exchange's Fee Schedule the fees for the Series 56 examination and the S501. Waiver of the operative delay would allow the Exchange to clarify its rules and implement the proposed rule change without delay once the Series 56 examination fee, S501 continuing education program and the related fee are available in WebCRD, enabling its Members to comply with their examination and continuing education requirements in a timely manner, and thus is consistent with the protection of investors and the public interest. Therefore, the Commission designates the proposal operative upon filing.
At any time within 60 days of the filing of this proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission will institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to modify BX connectivity options and fees. The text of the proposed rule change is available at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to modify Rule 7034(b) regarding connectivity to BX. Specifically, the Exchange proposes to establish connectivity and installation fees for a 10Gb Ultra low latency fiber connection option, and provide a waiver of installation fees for subscriptions through August 31, 2013.
The Exchange currently offers various bandwidth options for connectivity to the Exchange, including a 40Gb fiber connection, a 10Gb fiber connection, a 1Gb fiber connection, and a 1Gb copper connection.
The Exchange proposes a monthly subscription fee of $15,000 for a 10Gb Ultra connection, and a one-time installation fee of $1,500, which is identical to the 40Gb fiber connectivity option. The Exchange believes that the pricing is reflective of the value the option will provide and the hardware and other infrastructure and maintenance costs to the Exchange associated with offering technology that is at the forefront of the industry. The growth in the size of consolidated and proprietary data feeds has resulted in demand for faster processing of message traffic, and ultra-low latency switches meet this demand by decreasing the time individual orders are processed and market data is transmitted by these new switches. The Exchange's proposal provides the co-located client the option for faster switch processing, which is highly valued among some market participants. The Exchange notes that other markets have adopted low-latency connectivity options for their clients. For example, the International Securities Exchange LLC (“ISE”) offers a 10Gb low latency Ethernet connectivity option to its clients, which provides a “higher speed network to access [ISE's] Optimise trading system.”
The Exchange also proposes to provide a waiver of the installation fees for client orders of 10Gb Ultra fiber connectivity to the Exchange completed between the effectiveness of this proposal and August 31, 2013. The Exchange is providing the waiver to assist its co-located clients in upgrading to lower latency connections to meet the growing needs of co-located clients' business operations. The Exchange is adding text to the rule that makes it clear that the connectivity option also provides connection to the markets of The NASDAQ Stock Market LLC (“NASDAQ”) and NASDAQ OMX PHLX LLC (“Phlx”). The Exchange is deleting typographical errors in the title and text of the rule that refer to connectivity to NASDAQ and replacing them with references to BX, since it is a BX connectivity option. Last, the Exchange is deleting text under the rule that refers to an installation fee waiver time period for 10Gb and 40Gb fiber connections, which has since expired.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange believes that its proposal is consistent with Section 6(b)(4) of the Act because the fees
The Exchange believes that the proposed one-time installation fee is consistent with Section 6(b)(4) of the Act because it is identical to the installation fees assessed for 40Gb fiber connectivity under the rule. The Exchange notes that it will incur the same costs associated with setting up a subscriber with either 40Gb fiber or 10Gb Ultra fiber connectivity. As a consequence, the Exchange believes that it is reasonable to assess the same installation fee as 40Gb fiber. The Exchange also believes that its proposal to waive temporarily the 10Gb Ultra fiber connection installation fee is reasonable because it will assist its co-located clients in upgrading to lower latency connections to meet the growing needs of the co-located clients' business operations at a time in the industry when speed continues to be a driver of the U.S. securities markets. Moreover, the Exchange notes that it has previously waived the installation fees for the 10Gb and 40Gb fiber connections for a limited time after these connectivity options were first introduced.
In addition to covering costs, the proposed fees will allow the Exchange to recoup costs associated with providing the 10Gb Ultra fiber connection and provide the Exchange a profit while providing clients the possibility of reducing the number of their connections to the Exchange. As discussed above, ISE offers different connectivity options with respect to latency and NYSE Arca, Inc. offers what the Exchange believes is a similar connectivity option, yet both options do not provide the breadth of connectivity at the same latency as the Exchange's proposed 10Gb Ultra fiber connectivity option.
connectivity offering provides connectivity to the four markets of NYSE Euronext.
The Exchange also believes the proposed 10Gb Ultra fiber installation and connectivity fees are equitably allocated in that all co-located clients that voluntarily select this service option will be charged the same amount to cover the hardware, installation, testing and connection costs to maintain and manage the enhanced connection. The proposed fees allow the Exchange to recoup costs associated with providing the 10Gb Ultra fiber connection and provide the Exchange a profit while providing clients with the most efficient connection to the System in terms of latency. All co-located clients have the option to select this voluntary co-location connectivity option; however, the Exchange is not eliminating any existing connectivity options. Accordingly, a co-located client may elect not to subscribe to the 10Gb Ultra fiber connectivity option and retain the option to which it is currently subscribed.
The Exchange also believes the proposal furthers the objectives of Section 6(b)(5) of the Act
The Exchange also believes that the reduction in latencies attributed to the enhanced 10Gb Ultra connection option serves to protect investors and the public interest. The reduction in latency will provide investors with the most efficient means of processing orders once they reach the Exchange. Higher bandwidth options like the Exchange's current 10Gb and 40Gb fiber connectivity and the proposed 10Gb Ultra fiber option also remove the potential for data spikes and data gapping issues that result from the transmission of the growing size of the consolidated and proprietary market data feeds. Such data spiking and data gapping issues have the potential for disrupting the marketplace which could negatively impact investors as well as the public interest.
The Exchange also believes the proposed installation and subscription fees for the 10Gb Ultra fiber connectivity option are not unfairly discriminatory because all clients have the option to subscribe to co-locate with the Exchange and subscribe to the 10Gb Ultra connection. There is no differentiation among co-located clients
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. Specifically, the Exchange believes that the changes will promote competition by offering co-located clients an additional connectivity option that will enhance their trading operations and ultimately bring greater speed and efficiency to trading in the marketplace.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (1) Significantly affect the protection of investors or the public interest; (2) impose any significant burden on competition; and (3) by its terms does not become operative for 30 days after the date of this filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b–4(f)(6) normally does not become operative for 30 days after the date of filing. However, Rule 19b–4(f)(6)(iii) permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange has asked the Commission to waive the 30-day operative delay so that the proposal may become operative immediately upon filing noting that it operates in a highly competitive market in which colocation services are offered to facilitate trading activities and that this new service provides clients with the option to further enhance their trading immediately. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest so that BX can immediately offer the 10GB Ultra connectivity to those clients that believe it can enhance the efficiency of their trading.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Altus Pharmaceuticals, Inc. because it has not filed any periodic reports since the period ended June 30, 2009.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Blackhawk Capital Group BDC, Inc. because it has
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Cargo Connection Logistics Holding, Inc. because it has not filed any periodic reports since the period ended December 31, 2009.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Diapulse Corporation of America because it has not filed any periodic reports since the period ended September 30, 2008.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Globus International Resources Corp. because it has not filed any periodic reports since the period ended December 31, 2004.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Kingston Systems, Inc. because it has not filed any periodic reports since the period ended December 27, 2008.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Mega Media Group, Inc. because it has not filed any periodic reports since the period ended July 31, 2009.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed companies. Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed companies is suspended for the period from 9:30 a.m. EDT on August 14, 2013, through 11:59 p.m. EDT on August 27, 2013.
By the Commission.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of CNC Development, Ltd. because it has not filed any periodic reports since the period ended December 31, 2010.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Exousia Advanced Materials, Inc. because it has not filed any periodic reports since the period ended September 30, 2010.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of South American Minerals, Inc. because it has not filed any periodic reports since it filed a Form 10–SB/A registration statement on January 19, 2005.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed companies.
Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed companies is suspended for the period from 9:30 a.m. EDT on August 14, 2013, through 11:59 p.m. EDT on August 27, 2013.
By the Commission.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of AIMS Worldwide, Inc. because it has not filed any periodic reports since the period ended June 30, 2010.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Apollo Capital Group, Inc. because it has not filed any periodic reports since the period ended June 30, 2010.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of CommunitySouth Financial Corp. because it has not filed any periodic reports since the period ended September 30, 2010.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Last Mile Logistics Group, Inc. because it has not filed any periodic reports since the period ended March 31, 2008.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Made in America Entertainment, Inc. because it has not filed any periodic reports since the period ended June 30, 2008.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Millenia Hope, Inc. because it has not filed any periodic reports since the period ended February 29, 2008.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed companies. Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed companies is suspended for the period from 9:30 a.m. EDT on August 14, 2013, through 11:59 p.m. EDT on August 27, 2013.
By the Commission.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Soil Biogenics Ltd. because it has not filed
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed company. Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed company is suspended for the period from 9:30 a.m. EDT on August 14, 2013, through 11:59 p.m. EDT on August 27, 2013.
By the Commission.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of iVoice, Inc. because it has not filed any periodic reports since the period ended September 30, 2011.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Protectus Medical Devices, Inc. because it has not filed any periodic reports since the period ended September 30, 2010.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of St. Lawrence Energy Corp. because it has not filed any periodic reports since the period ended September 30, 2009.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed companies.
Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed companies is suspended for the period from 9:30 a.m. EDT on August 14, 2013, through 11:59 p.m. EDT on August 27, 2013.
By the Commission.
Notice of request for emergency OMB approval.
The Department of State has submitted the information collection request described below to the Office of Management and Budget (OMB) for review and approval in accordance with the emergency review procedures of the Paperwork Reduction Act of 1995. The purpose of this notice is to allow for public comment from all interested individuals and organizations. Emergency review and approval of this collection has been requested from OMB immediately. If granted, the emergency approval is only valid for 180 days.
Direct any comments on this emergency request to the Department of State Desk Officer in the Office of Information and Regulatory Affairs at the Office of Management and Budget (OMB).
You may submit comments to OMB by the following methods:
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During the first 60 days of the emergency approval period, a regular review of this information collection is also being undertaken. The Department of State requests written comments and suggestions from the public and affected agencies concerning this proposed collection of information. The Department will accept comments up to
You may submit comments by any of the following methods:
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You must include the DS form number (if applicable), information collection title, and OMB control number in any correspondence.
Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, to Susan B. Summers, Chief of Medical Clearances, SA–15A, who may be reached on 703–875–5413 or
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden of this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
Abstract of proposed collection:
Pursuant to the Foreign Service Act of 1980, as amended, the Secretary of State
Methodology:
After the individual and his or her health care provider complete the form, it can be faxed or scanned and emailed to
Determinations: “Dena'inaq' Huch'ulyeshi: The Dena'ina Way of Living”
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Paul W. Manning, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6469). The mailing address is U.S. Department of State, SA–5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522–0505.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Julie Simpson, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6467). The mailing address is U.S. Department of State, SA–5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522–0505.
Department of State.
Notice; correction.
On August 7, 2013, notice was published on page 48216 of the
For further information, contact Paul W. Manning, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6469). The mailing address is U.S. Department of State, SA–5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522–0505.
Notice of Applications for Certificates of Public Convenience and Necessity and Foreign Air Carrier Permits Filed Under Subpart B (formerly Subpart Q) during the Week Ending July 27, 2013. The following Applications for Certificates of Public Convenience and Necessity and Foreign Air Carrier Permits were filed under Subpart B (formerly Subpart Q) of the Department of Transportation's Procedural Regulations (See 14 CFR 301.201 et. seq.). The due date for Answers, Conforming Applications, or Motions to Modify Scope are set forth below for each application. Following the Answer period DOT may process the application by expedited procedures. Such procedures may consist of the adoption of a show-cause order, a tentative order, or in appropriate cases a final order without further proceedings.
Notice of Applications for Certificates of Public Convenience and Necessity and Foreign Air Carrier Permits Filed Under Subpart B (formerly Subpart Q) during the Week Ending August 3, 2013. The following Applications for Certificates of Public Convenience and Necessity and Foreign Air Carrier Permits were filed under Subpart B (formerly Subpart Q) of the Department of Transportation's Procedural Regulations (See 14 CFR 301.201 et. seq.). The due date for Answers, Conforming Applications, or Motions to Modify Scope are set forth below for each application. Following the Answer period DOT may process the application by expedited procedures. Such procedures may consist of the adoption of a show-cause order, a tentative order, or in appropriate cases a final order without further proceedings.
Federal Aviation Administration (FAA), DOT.
Notice of Aviation Rulemaking Advisory Committee (ARAC) meeting.
The FAA is issuing this notice to advise the public of a meeting of the ARAC.
The meeting will be held on September 19, 2013, starting at 1:00 p.m. Eastern Standard Time. Arrange oral presentations by September 12, 2013.
The meeting will take place at the Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591, 10th floor, MacCracken Room.
Renee Butner, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591, telephone (202) 267–5093; fax (202) 267–5075; email
Pursuant to Section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C. App. 2), we are giving notice of a meeting of the ARAC taking place on September 19, 2013, at the Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591. The Agenda includes:
Attendance is open to the interested public but limited to the space available. Please confirm your attendance with the person listed in the
For persons participating by telephone, please contact the person listed in the
The public must arrange by September 12, 2013 to present oral statements at the meeting. The public may present written statements to the Aviation Rulemaking Advisory Committee by providing 25 copies to the Designated Federal Officer, or by bringing the copies to the meeting.
If you are in need of assistance or require a reasonable accommodation for this meeting, please contact the person listed under the heading
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of application for exemption; request for comments.
FMCSA announces that Miami Nice Tours (Miami) has applied for an exemption from the commercial driver's license (CDL) provisions of part 383 of the Federal Motor Carrier Safety Regulations (FMCSRs) (49 CFR 350–399) for itself and 50 European drivers. Miami, a motor carrier, would employ the 50 European drivers to conduct approximately 87 motorcoach tours in the United States annually. Part 383 requires motorcoach drivers to hold a CDL issued by a U.S. State. While each driver is licensed to operate a motorcoach in his or her European country of residence, States do not issue CDLs to non-residents. Miami believes that these drivers are likely to achieve a level of safety that is equivalent to or greater than the level of safety that would be obtained if they held U.S. CDLs.
Comments must be received on or before September 16, 2013.
You may submit comments identified by Federal Docket Management System Number FMCSA–2013–0284 by any of the following methods:
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Mr. Thomas Yager, Chief, FMCSA Driver and Carrier Operations Division; Office of Bus and Truck Standards and Operations; Telephone: 202–366–4325. Email:
FMCSA has authority under 49 U.S.C. 31315 and 31136(e) to grant exemptions from certain parts of the FMCSRs. The Agency is required to publish a notice of each exemption request in the
FMCSA reviews safety analyses and public comments submitted and determines whether granting the exemption would likely achieve a level of safety equivalent to or greater than the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the
Miami Nice Tours (Miami) is a motor carrier based in Florida and duly registered with FMCSA to transport passengers in interstate commerce. It has applied for an exemption from the
Part 383 requires motorcoach drivers to hold a CDL. The foreign drivers do not hold CDLs issued by a U.S. State, but they are licensed to operate motorcoaches in their respective country of residence (Germany, Austria, or Switzerland). Miami seeks the exemption because the foreign drivers cannot satisfy the residency requirement that all States require of applicants for a CDL. Miami states that an exemption is appropriate because Miami asserts that these drivers are likely to achieve a level of safety operating motorcoaches in the U.S. that is equivalent to or greater than the level of safety that would be obtained if they held U.S. CDLs.
In accordance with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA requests public comment on Miami's application for an exemption from the CDL requirements of 49 CFR 383.23. The Agency will consider all comments received by close of business on September 16, 2013. Comments will be available for examination in the docket as explained in the
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to exempt 24 individuals from its rule prohibiting persons with insulin-treated diabetes mellitus (ITDM) from operating commercial motor vehicles (CMVs) in interstate commerce. The exemptions will enable these individuals to operate CMVs in interstate commerce.
The exemptions are effective August 16, 2013. The exemptions expire on August 16, 2015.
Elaine M. Papp, Chief, Medical Programs Division, (202) 366–4001,
You may see all the comments online through the Federal Document Management System (FDMS) at:
On May 31, 2013, FMCSA published a notice of receipt of Federal diabetes exemption applications from 24 individuals and requested comments from the public (78 FR 32704). The public comment period closed on July 1, 2013, and one comment was received.
FMCSA has evaluated the eligibility of the 24 applicants and determined that granting the exemptions to these individuals would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(3).
The Agency established the current requirement for diabetes in 1970 because several risk studies indicated that drivers with diabetes had a higher rate of crash involvement than the general population. The diabetes rule provides that “A person is physically qualified to drive a commercial motor vehicle if that person has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control” (49 CFR 391.41(b)(3)).
FMCSA established its diabetes exemption program, based on the Agency's July 2000 study entitled “A Report to Congress on the Feasibility of a Program to Qualify Individuals with Insulin-Treated Diabetes Mellitus to Operate in Interstate Commerce as Directed by the Transportation Act for the 21st Century.” The report concluded that a safe and practicable protocol to allow some drivers with ITDM to operate CMVs is feasible. The September 3, 2003 (68 FR 52441),
These 24 applicants have had ITDM over a range of 1 to 38 years. These applicants report no severe hypoglycemic reactions resulting in loss of consciousness or seizure, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning symptoms, in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the past 5 years. In each case, an endocrinologist verified that the driver has demonstrated a willingness to properly monitor and manage his/her diabetes mellitus, received education related to diabetes management, and is on a stable insulin regimen. These drivers report no other disqualifying conditions, including diabetes-related complications. Each meets the vision requirement at 49 CFR 391.41(b)(10).
The qualifications and medical condition of each applicant were stated and discussed in detail in the May 31, 2013,
FMCSA received one comment in this proceeding. The comment is considered and discussed below.
The Pennsylvania Department of Transportation is in favor of granting an exemption to Kyle P. Cerra, Jeffrey S. Hubbell, and Thomas R. Yecker after reviewing their driving histories.
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the diabetes requirement in 49 CFR 391.41(b)(3) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. The exemption allows the applicants to operate CMVs in interstate commerce.
To evaluate the effect of these exemptions on safety, FMCSA considered medical reports about the applicants' ITDM and vision, and reviewed the treating endocrinologists' medical opinion related to the ability of the driver to safely operate a CMV while using insulin.
Consequently, FMCSA finds that in each case exempting these applicants from the diabetes requirement in 49 CFR 391.41(b)(3) is likely to achieve a level of safety equal to that existing without the exemption.
The terms and conditions of the exemption will be provided to the applicants in the exemption document and they include the following: (1) That each individual submit a quarterly monitoring checklist completed by the treating endocrinologist as well as an annual checklist with a comprehensive medical evaluation; (2) that each individual reports within 2 business days of occurrence, all episodes of severe hypoglycemia, significant complications, or inability to manage diabetes; also, any involvement in an accident or any other adverse event in a CMV or personal vehicle, whether or not it is related to an episode of hypoglycemia; (3) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (4) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the certification when driving, for presentation to a duly authorized Federal, State, or local enforcement official.
Based upon its evaluation of the 24 exemption applications, FMCSA exempts Herlen D. Barner (TN), Paul D. Blakeslee (AK), James W. Bledsoe (AL), Bryant M. Bosler (IL), Daniel L. Bosley (KY), Richard J. Buckman (MA), Fred S. Carpenter (NJ), Verland G. Casper (WI), Kyle P. Cerra (PA), David M. Galler (MO), Raymond K. Harper (KS), Shane B. Henninger (IA), Ronald A. Hersch (NJ), Lucius L. Holmes, Jr. (VA), Jeffrey S. Hubbell (PA), Jason L. Jarman (OK), Kevin T. Johnson (SD), Randall L. Krider (IN), Jose R. Monroy (IL), Eric J. Mullins (VA), William S. Panoch (WI), James E. Smith (TN), Kevin R. Treichel (IA), and Thomas R. Yecker (PA) from the ITDM requirement in 49 CFR 391.41(b)(3), subject to the conditions listed under “Conditions and Requirements” above.
In accordance with 49 U.S.C. 31136(e) and 31315 each exemption will be valid for two years unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (1) The person fails to comply with the terms and conditions of the 1/exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315. If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time.
BNSF Railway Company (BNSF), pursuant to a written trackage rights agreement dated June 17, 2013, has agreed to grant overhead trackage rights to Illinois Central Railroad Company (IC), a wholly owned, indirect subsidiary of Canadian National Railway Company, over BNSF's Thayer South Subdivision, between milepost 483.8 at CN Junction and milepost 485.8 at KC Junction in Memphis, Shelby County, Tenn., a distance of approximately 2.0 miles.
The transaction is scheduled to be consummated on or after August 30, 2013, the effective date of the exemption (30 days after the exemption was filed).
The purpose of the transaction is to permit IC to interchange loaded and empty cars with the Norfolk Southern Railroad Company (NS) at NS's Forrest Yard.
As a condition to this exemption, any employees affected by the trackage rights will be protected by the conditions imposed in
An original and 10 copies of all pleadings, referring to Docket No. FD 35753, must be filed with the Surface Transportation Board, 395 E Street SW., Washington, DC 20423–0001. In addition, a copy of each pleading must be served on Audrey L. Brodrick, Fletcher & Sippel LLC, 29 North Wacker Drive, Suite 920, Chicago, IL 60606–2832.
Board decisions and notices are available on our Web site at “
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995,
Written comments should be received on or before October 15, 2013 to be assured of consideration.
Direct all written comments to Yvette B. Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for copies of the regulation should be directed to Martha R. Brinson, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13(44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning, Treatment of Gain From Disposition of Certain Natural Resource Recapture Property.
Written comments should be received on or before October 15, 2013 to be assured of consideration.
Direct all written comments to Yvette B. Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the regulation should be directed to Martha R. Brinson, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Announcement 2004–38 (as modified by Notice 2006–105), Election of Alternative Deficit Reduction Contribution.
Written comments should be received on or before October 15, 2013 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the announcement should be directed to Allan Hopkins, room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Veterans Health Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501–21), this notice announces that the Veterans Health Administration (VHA), Department of Veterans Affairs, has submitted the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and includes the actual data collection instrument.
Comments must be submitted on or before September 16, 2013.
Submit written comments on the collection of information through
Crystal Rennie, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 632–7492 or email
a. Application for CHAMPVA Benefits, VA Form 10–10d.
b. CHAMPVA Claim Form, VA Form 10–7959a.
c. CHAMPVA Other Health Insurance (OHI) Certification, VA Form 10–7959c.
d. CHAMPVA Potential Liability Claim, VA Form 10–7959d.
e. Claim for Miscellaneous Expenses, VA Form 10–7959e.
a. VA Form 10–10d is used to determine eligibility of persons applying for healthcare benefits under the CHAMPVA program.
b. VA Form 10–7959a is used to adjudicate claims for CHAMPVA benefits in accordance with 30 U.S.C. 501 and 1781, and 10 U.S.C. 1079 and 1086.
c. VA Form 10–7959c is used to systematically obtain other health insurance information and to correctly coordinate benefits among all liable parties.
d. VA Form 10–7959d form provides basic information from which potential liability can be assessed.
e. Beneficiaries complete VA Form 10–7959e to carry out health care programs for certain children of Korea and/or Vietnam Veterans authorized under 38, U.S.C., chapter 18, as amended by section 401, Public Law 106–419 and section 102, Public Law 108–183.
a. VA Form 10–10d—5,294 hours.
b. VA Form 10–7959a—22,402 hours.
c. VA Form 10–7959c—6,728 hours.
d. VA Form 10–7959d—467 hours.
e. VA Form 10–7959e—1500 hours.
a. VA Form 10–10d—12 minutes.
b. VA Form 10–7959a—6 minutes.
c. VA Form 10–7959c—5 minutes.
d. VA Form 10–7959d—7 minutes.
e. VA Form 10–7959e—30 minutes.
a. VA Form 10–10d—26,468.
b. VA Form 10–7959a—224,018.
c. VA Form 10–7959c—80,733.
d. VA Form 10–7959d—4,000.
e. VA Form 10–7959e—3,000.
By direction of the Secretary.
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 5 U.S.C. App. 2, that the subcommittees of the Rehabilitation Research and Development Service Scientific Merit Review Board will meet from 8 a.m. to 5 p.m. on the dates indicated below:
The addresses of the meeting sites are:
The purpose of the Board is to review rehabilitation research and development applications and advise the Director, Rehabilitation Research and Development Service, and the Chief Research and Development Officer on the scientific and technical merit, the mission relevance, and the protection of human and animal subjects.
The subcommittee meetings will be open to the public for approximately one-half hour at the start of each meeting to cover administrative matters and to discuss the general status of the program. The remaining portion of each subcommittee meeting will be closed to the public for the discussion, examination, reference to, and oral review of the research applications and critiques. During the closed potion of each subcommittee meeting, discussion and recommendations will include qualifications of the personnel conducting the studies (the disclosure of which would constitute a clearly unwarranted invasion of personal privacy), as well as research information (the premature disclosure of which would likely compromise significantly the implementation of proposed agency action regarding such research projects). As provided by subsection 10(d) of Public Law 92–463, as amended by Public Law 94–409, closing the meeting is in accordance with 5 U.S.C. 552b(c)(6) and (9)(B).
No oral comments will be accepted from the public for either portion of the meetings. Those who plan to attend the open portion of a subcommittee meeting should contact Tiffany Asqueri, Designated Federal Officer, Rehabilitation Research and Development Service, at Department of Veterans Affairs (10P9R), 810 Vermont Avenue NW., Washington, DC 20420, or email
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 5 U.S.C. App. 2, that the Health Services Research and Development Service (HSR&D) Scientific Merit Review Board will conduct in-person and teleconference meetings of its seven Health Services Research (HSR) subcommittees from 8:00 a.m. to approximately 5:00 p.m. on the dates and at the locations indicated below:
• HSR 1—Medical Care and Clinical Management; Health Professional Behavior on August 27–28, 2013, at the National Naval Medical Center, Bethesda, Maryland;
• HSR 2—Patient and Special Population Determinants of Health and Care on August 27–28, 2013, at the Veterans Health Administration (VHA) National Conference Center, Arlington, Virginia;
• HSR 3—Healthcare Informatics on Tuesday, August 27, 2013, at the Paralyzed Veterans of America, Washington, DC;
• HSR 4—Mental and Behavioral Health on August 27–28, 2013, at the Paralyzed Veterans of America, Washington, DC;
• HSR 5—Health Care System Organization and Delivery; Research Methods and Models on August 27–28, 2013, at the VHA National Conference Center, Arlington, Virginia;
• HSR 6—Post-acute and Long-term Care on Wednesday, August 28, 2013, at the Paralyzed Veterans of America, Washington, DC;
• HSR 7—Aging and Diminished Capacity in the Context of Aging on Tuesday, August 27, 2013, at the Disabled American Veterans, Washington, DC; and
• Nursing Research Initiative (NRI) from 8:00 a.m. to 12:00 p.m. on Thursday, August 29, 2013, at the National Naval Medical Center, Bethesda, Maryland.
The purpose of the Board is to review HSR&D applications involving the measurement and evaluation of health care services, the testing of new methods of health care delivery and management, and nursing research. Applications are reviewed for scientific and technical merit, mission relevance, and the protection of human and animal subjects. Recommendations regarding funding are submitted to the Chief Research and Development Officer.
Each subcommittee meeting of the Board will be open to the public for approximately one half-hour at the start of the meetings' first day on August 27 (HSR 1, 2, 3, 4, 5 and 7), August 28 (HSR 6), and August 29 (NRI). This time will be used to cover administrative matters and to discuss the general status of the program. The remaining portion of each subcommittee meeting will be closed for discussion, examination, reference to, and oral review of the intramural research proposals and critiques. During the closed portion of each subcommittee meeting, discussion and recommendations will include qualifications of the personnel conducting the studies (the disclosure of which would constitute a clearly unwarranted invasion of personal privacy), as well as research information (the premature disclosure of which would likely compromise significantly the implementation of proposed agency action regarding such research projects). As provided by subsection 10(d) of Public Law 92–463, as amended by Public Law 94–409, closing the meeting is in accordance with 5 U.S.C. 552b(c)(6) and (9)(B).
No oral comments will be accepted from the public for either portion of the meetings. Those who plan to attend the open portion of a subcommittee meeting should contact Kristy Benton-Grover, Designated Federal Officer and Program Manager, Scientific Merit Review Board, Department of Veterans Affairs, Health Services Research and Development Service (10P9H), 810 Vermont Avenue NW., Washington, DC 20420, or by email at
By Direction of the Secretary.
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 5 U.S.C. App. 2, that the Advisory Committee on Women Veterans will conduct a site visit on August 19–23, 2013, at the Atlanta VA Medical Center (VAMC), 1670 Clairmont Road, Decatur, Georgia, from 8:30 a.m. each day and will adjourn at 4 p.m. on August 19–22 and at noon on August 23. Meetings are open to the public except when the Committee is off site for VA facility tours. Briefings will take place at the Atlanta VAMC and other local VA facilities. The site visit will include several closed sessions, to protect patient privacy during tours of medical facilities. Closing portions of the sessions are in accordance with 5 U.S.C. 552b(c)(6).
The purpose of the Committee is to advise the Secretary of Veterans Affairs regarding the needs of women Veterans with respect to health care, rehabilitation, compensation, outreach, and other programs and activities administered by VA designed to meet such needs. The Committee makes recommendations to the Secretary regarding such programs and activities.
On August 19, the Committee will convene an open session at the in the Pete Wheeler Auditorium, Room GA104 at the Atlanta VAMC. The agenda will include overview briefings from the Atlanta VA Medical Center leadership and the VA Southeast Network (Veterans Integrated Service Network 7) facilities, programs, demographics and women Veterans programs.
On August 20, the Committee will convene an open session at the in the Bobbie Vance Classroom, Room 3A–197 at the Atlanta VAMC. The Committee will receive briefings from Atlanta VAMC program offices on the Million Veteran Program, the Women Veterans Health Committee, the Women's Health Collaborative Workgroup, trauma recovery, domiciliary care, mental health, and military sexual trauma treatment. The Committee will also visit the Center of Excellence at the East Point Community Based Outpatient Clinic at 1513 Cleveland Avenue, East Point, Georgia, and receive briefings on the residential women Veterans program at Mary Hall Freedom House, patient aligned care teams, and the Women's Health Center of Excellence.
On August 21, the Committee will convene an open session at the in the Pete Wheeler Auditorium, Room GA104 at the Atlanta VAMC. Briefings will cover the Atlanta VAMC's homeless Veterans program, post-deployment health reintegration, caregivers support, and tele-health. In the afternoon, the Committee will convene a closed session as the Committee tours the Atlanta VAMC.
In the morning of August 22, the Committee will convene a closed session as they tour the Trinka Davis Veterans Village, in Carrollton, Georgia and the Marietta Vet Center in Marietta, Georgia. In the afternoon, the Committee will reconvene an open session in the Director's Conference Room at the Atlanta Regional Office (RO), at 1700 Clairmont Road, Decatur, Georgia, to receive briefings on RO business lines and services for women Veterans. A briefing from local Memorial Affairs leadership will also be presented.
On August 23, the Committee will convene an open session at the Courtyard by Marriott Atlanta Decatur Downtown/Emory, 130 Clairemont Avenue, Decatur, Georgia, with Atlanta VAMC leadership, and conduct a town hall meeting with the women Veterans community and other stakeholders. The town hall meeting will begin at 10 a.m.
With the exception of the town hall meeting, there will be no time for public comment during the meeting. Members of the public may submit written statements for the Committee's review to
By Direction of the Secretary.
Department of Veterans Affairs.
Notice of Computer Match Program.
Pursuant to 5 U.S.C. 552a, the Privacy Act of 1974, as amended, and the Office of Management and Budget (OMB) Guidelines on the Conduct of Matching Programs, notice is hereby given that the Department of Veterans Affairs (VA) intends to conduct a computer matching program with the Internal Revenue Service (IRS). Data from the proposed match will be used to verify the unearned income of nonservice-connected veterans, and those veterans who are zero percent service-connected (noncompensable), whose eligibility for VA medical care is based on their inability to defray the cost of medical care. These veterans supply household income information that includes their spouses and dependents at the time of application for VA health care benefits.
Written comments may be submitted through
Floretta W. Hardmon, Acting Director, Veterans Health Administration Chief Business Office, Member Services, Health Eligibility Center, (404) 848–5300. (This is not a toll-free number.)
The Department of Veterans Affairs has statutory authorization under 38 U.S.C. 5317, 38 U.S.C. 5106, 26 U.S.C. 6103(l)(7)(D)(viii) and 5 U.S.C. 552a to establish matching agreements and request and use income information from other agencies for purposes of verification of income for determining eligibility for benefits. 38 U.S.C. 1710(a)(2)(G), 1710(a)(3), and 1710(b) identify those veterans whose basic eligibility for medical care benefits is dependent upon their financial status. Eligibility for nonservice-connected and zero percent noncompensable service-connected veterans is determined based on the veteran's inability to defray the expenses for necessary care as defined in 38 U.S.C. 1722. This determination can affect their responsibility to participate in the cost of their care through copayments and their assignment to an enrollment priority group. The goal of this match is to obtain IRS unearned income information data needed for the income verification process. VA records involved in the match are “Enrollment and Eligibility Records—VA” (147VA16). IRS will extract return information with respect to unearned income from the Information Return Master File (IRMF) Process File, Treas/IRS 22.061, through the Disclosure of Information to Federal, State, and Local Agencies (DIFSLA) program. A copy of this notice has been sent to both houses of Congress and OMB.
This matching agreement expires 18 months after its effective date. This match will not continue past the legislative authorized date to obtain this information.
Coast Guard, DHS.
Interim rule.
The Coast Guard is updating and revising regulatory tables that list liquid hazardous materials, liquefied gases, and compressed gases that have been approved for maritime transportation in bulk, and that indicate how each substance's pollution potential has been categorized. The interim rule provides new information about approved substances and their categorizations, but would not make any changes in which substances are approved or how each substance is categorized. Updated information is of value to shippers and to the owners and operators of U.S.-flag tank and bulk cargo vessels in any waters and most foreign-flag tank and oceangoing bulk cargo vessels in U.S. waters. This interim rule promotes the Coast Guard's maritime safety and stewardship missions.
This interim rule is effective September 16, 2013. Comments and related material must either be submitted to our online docket via
You may submit comments identified by docket number USCG–2013–0423 using any one of the following methods:
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the
If you have questions on this rule, email or call LCDR Marie Castillo-Bletso, Coast Guard; email:
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to
If you submit a comment, please include the docket number for this rulemaking (USCG–2013–0423), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online, or by fax, mail or hand delivery, but please use only one of these means. We recommend that you include your name and a mailing address, an email address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission.
To submit your comment online, go to
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
We do not now plan to hold a public meeting, but you may submit a request for one to the docket using one of the methods specified under
The basis of this interim rule is 46 U.S.C. 3703, which requires the Secretary of the department in which the Coast Guard is operating to prescribe regulations relating to the operation of vessels that carry liquid bulk dangerous cargoes, and to the types and grades of cargo those vessels carry. Additional regulatory authority is provided by 33 U.S.C. 1903 (regulations to implement the International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL)), 46 U.S.C. 2103 (merchant marine regulatory authority), and 46 U.S.C. 3306 (regulations for the safety of individuals and property on inspected vessels). The Secretary's authority under these statutes is delegated to the Coast Guard in Department of Homeland Security Delegation No. 0170.1 (77) and (92).
The purpose of the interim rule is to update and revise regulatory tables that list liquid hazardous materials, liquefied gases, and compressed gases that have been approved for maritime transportation in bulk, and that indicate how each substance's pollution potential has been categorized.
The Administrative Procedure Act, 5 U.S.C. 551
Additionally, delaying the regulatory update to allow for notice and comment is contrary to the public interest because it delays the public's ready access to categorization information without which it is impossible to know which regulations apply to any specific substance.
Coast Guard regulations in 46 CFR subchapter O (parts 150 through 155) list hundreds of hazardous liquids, liquefied gases, and compressed gases that the Coast Guard has approved for bulk transportation by vessels. Subchapter O specifies requirements for safely transporting these substances.
If a substance is not already listed in subchapter O, a vessel owner or operator must request the Coast Guard's written permission to transport the substance. 46 CFR 150.140, 151.01–15, 153.900. If the owner or operator plans to ship the substance internationally, an additional procedure is necessary to satisfy the requirements of international treaties to which the United States is a party. Specifically, a “tripartite agreement” must be concluded between the owner or operator, the Coast Guard, and the flag administration of the country to which the substance will be shipped. The tripartite agreement categorizes the substance's potential for pollution and sets its minimum safe carriage requirements in accordance with the International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk (IBC Code), which contains international standards for the safe maritime bulk transportation of dangerous and noxious liquid chemicals in accordance with MARPOL and the International Convention for the Safety of Life at Sea (SOLAS). A copy of the tripartite agreement is forwarded to the International Maritime Organization's (IMO's) Marine Environment Protection Committee (MEPC).
While this substance-specific approval procedure facilitates the commercial development and use of new substances and ensures the safety of a new substance's maritime transportation, public awareness of the new substance and its applicable safety requirements is maximized only by listing it in subchapter O, and in similar regulatory lists maintained by other countries. The IMO facilitates this public awareness. After each tripartite agreement is forwarded to the MEPC, the MEPC reviews the information the agreement contains, and either modifies or validates the information. Each December, the MEPC releases a circular listing the new substances for which it has completed this review. The circular lists the countries that have approved international maritime transportation of the substance, and provides information about the substance's pollution categorization and minimum transportation safety requirements. Thus, if the United States has approved a substance for bulk maritime transportation, eventually it will be listed in the MEPC circular.
Periodically, the IBC Code is revised, and substances listed in MEPC annual circulars since the last IBC Code revision are incorporated into the IBC Code. The IBC Code was last comprehensively revised in 2007, at which time the pollution categories for approved substances were changed from an A–B–C–D categorization scheme (with A representing the most severe pollution hazards and B, C, and D representing decreasing levels of risk) to an X–Y–Z–OS scheme (with X, Y, and Z representing decreasing hazard levels and OS representing “other substances” that present no significant pollution hazards). In March 2012, an Annex to the 2007 IBC Code appeared, listing additional substances with their pollution categorizations. The 2007 IBC Code and March 2012 Annex were most recently updated by the December 2012 MEPC Circular.
This interim rule is up to date as of the December 2012 MEPC Circular. It updates and revises subchapter O tables listing liquid chemical substances that the Coast Guard has approved for bulk maritime transportation, which have not been updated in several years. As a result, vessel owners and operators have lacked current and comprehensive lists of approved substances. Moreover, the current subchapter O tables use the outmoded A–B–C–D pollution categories and do not convey information about the X, Y, Z, and OS categories in international use since the IBC Code's 2007 revision. By updating the lists and revising their pollution
The subchapter O tables amended by this interim rule are Table 30.25–1 (List of Flammable and Combustible Bulk Liquid Cargoes), Table I to Part 150 (Alphabetical List of Cargoes), Table II to Part 150 (Grouping of Cargoes), Appendix I to Part 150 (Exceptions to the Chart), and Table 2 to Part 153 (Cargoes Not Regulated Under Subchapters D or O of this Chapter When Carried in Bulk on Non-oceangoing Barges). We are amending each of these tables to update the lists through December 2012 and to revise pollution categorizations. Also, we are revising the 46 CFR 30.25–1 regulatory text that serves as the introduction to Table 30.25–1 to explain the pollution categorizations included in that table.
Executive Orders (E.O.s) 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This interim rule has not been designated a “significant regulatory action” under section 3(f) of E.O. 12866. Accordingly, the interim rule has not been reviewed by the Office of Management and Budget. A draft regulatory assessment is included herein.
This interim rule updates tables that list the names and pollution-potential categorizations of liquid chemical substances that have already been categorized and approved for maritime transportation in bulk, either permanently or on a provisional basis. This interim rule makes no new decisions about whether any specific chemical substance should be approved for bulk maritime transportation, about how any specific substance should be categorized, or about carriage requirements that should apply to any specific substance. It simply provides updated information about the substances that are currently approved and how they are currently categorized. As such, this interim rule does not directly affect any particular vessel population. However, this interim rule indirectly applies to the following vessel populations carrying these cargoes from 46 CFR parts 30, 150, 151, 153, and 154 as described:
• Part 30: U.S-flag tank vessels, as further specified in 46 CFR 30.01–5.
• Part 150: U.S.-flag and foreign-flag tank (when in U.S. waters; except foreign-flag tank vessels in innocent passage through U.S. waters) vessels, with exceptions described in 46 U.S.C. 3702.
• Part 151: Non-self-propelled bulk-cargo carrying oceangoing/non-oceangoing U.S.-flag and oceangoing foreign-flag (when in U.S. waters) vessels, as further specified in 46 CFR 151.01–1.
• Part 153: Self-propelled bulk cargo carrying oceangoing/non-oceangoing U.S.-flag and oceangoing foreign-flag (when in U.S. waters) vessels, as further specified in 46 CFR 153.1.
• Part 154: U.S.-flag and foreign-flag (when in U.S. waters) vessels with bulk liquefied gas cargo/cargo residue or vapor, as further specified in 46 CFR 154.5.
This interim rule updates tables that list the names and pollution-potential categorizations of liquid chemical substances that have already been categorized and approved by the United States and the IMO for maritime transportation in bulk, either permanently or on a provisional basis. Since this interim rule simply updates tables and a table preface to reflect decisions already made under international law about which liquid chemical substances are approved for bulk maritime transportation, and about how those substances should be categorized with respect to their pollution potential, it does not change established shipping requirements and there are no private sector costs expected from this interim rule. This interim rule incorporates chemical substances and categorizations listed by the IMO through its December 2012 MEPC Circular.
The primary benefit of this interim rule is to conform regulatory language to practices currently allowed by the Coast Guard through either individual letters of approval or the IBC Code as discussed above, which we expect will result in the benefit of improved service to the public through improved clarity and transparency.
Under the Regulatory Flexibility Act (5 U.S.C. 601–612) (RFA), we have considered whether this interim rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. We recognize that an Initial Regulatory Flexibility Analysis is not required when an interim rule is promglated without prior notice and comment. Although no impacts on small entities are anticipated, Coast Guard included a threshold analysis of the Interim Rule requirements in order to follow the spirit of the Regulatory Flexibility Act. As this rule does not impose any additional direct costs on small entities as defined by the RFA, this rule is not expected to have a significant economic impact on a substancial number of small entities.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If this interim rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult LCDR Marie Castillo-Bletso, at
This interim rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). This interim rule simply updates and revises tables that list substances that have been approved and categorized for bulk maritime transportation, which does not involve information collection.
A rule has implications for federalism under E.O. 13132 (“Federalism”) if it has a substantial direct effect on the
It is well-settled that States may not regulate in categories reserved for regulation by the Coast Guard. It is also well-settled, now, that all of the categories covered in 46 U.S.C. 3306, 3703, 7101, and 8101 (design, construction, alteration, repair, maintenance, operation, equipping, personnel qualification, and manning of vessels), as well as the reporting of casualties and any other category in which Congress intended the Coast Guard to be the sole source of a vessel's obligations, are within fields foreclosed from regulation by the States. (See the decision of the Supreme Court in the consolidated cases of
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This interim rule will not cause a taking of private property or otherwise have taking implications under E.O. 12630 (“Governmental Actions and Interference with Constitutionally Protected Property Rights”).
This interim rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988 (“Civil Justice Reform”) to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this interim rule under E.O. 13045 (“Protection of Children from Environmental Health Risks and Safety Risks”). This interim rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This interim rule does not have tribal implications under E.O. 13175 (“Consultation and Coordination with Indian Tribal Governments”) because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this interim rule under E.O. 13211 (“Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use”). We have determined that it is not a “significant energy action” under that E.O. because it is not a “significant regulatory action” under E.O. 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under E.O. 13211.
The National Technology Transfer and Advancement Act (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This interim rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this interim rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under the “Public Participation and Request for Comments” section of this preamble. This interim rule involves administrative updates of existing chemical transport regulations and updates provisions relating to the chemical properties of liquid chemical substances approved for maritime transportation in bulk. The update incorporates changes in how approved substances are categorized by their chemical properties. This interim rule promotes the Coast Guard's maritime safety and stewardship missions. It is therefore included in the Coast Guard's Commandant Instruction (COMDTINST) M16475.1D, Figure 2–1, which includes categorical exclusions (CEs) under categories (34)(a), “regulations which are editorial or procedural, such as those updating addresses or establishing application procedures,” and 34 (d), “regulations concerning manning, documentation, admeasurement, inspection, and equipping of vessels,” as well as in the “Appendix to National Environmental Policy Act: Coast Guard Procedures for Categorical Exclusions, Notice of Final Agency Policy” (see 67 FR 48243) under paragraph 6 (a), “regulations concerning vessel operation safety standards . . . equipment approval, and/or equipment carriage requirements . . . and visual distress signals.” We seek any comments or information that may lead to the discovery of a significant environmental impact from this interim rule.
Cargo vessels, Foreign relations, Hazardous materials transportation, Penalties, Reporting and recordkeeping requirements, Seamen.
Hazardous materials transportation, Marine safety, Occupational safety and health, Reporting and recordkeeping requirements.
Cargo vessels, Hazardous materials transportation, Marine safety, Reporting and recordkeeping requirements, Water pollution control.
Administrative practice and procedure, Cargo vessels, Hazardous materials transportation, Marine safety, Reporting and recordkeeping requirements, Water pollution control.
For the reasons set out in the preamble, the Coast Guard amends 46 CFR parts 30, 150, 151, and 153 as follows:
46 U.S.C. 2103, 3306, 3703; Pub. L. 103–206, 107 Stat. 2439; 49 U.S.C. 5103, 5106; Department of Homeland Security Delegation No. 0170.1; Section 30.01–2 also issued under the authority of 44 U.S.C. 3507; Section 30.01–05 also issued under the authority of Sec. 4109, Pub. L. 101–380, 104 Stat. 515.
(a) Table 30.25–1 lists flammable or combustible cargoes that, when transported in bulk, must be in vessels certificated under this subchapter D.
(b) A mixture or blend of two or more cargoes appearing in Table 30.25–1 may be transported under this subchapter D.
(c) A mixture or blend of one or more cargoes appearing in Table 30.25–1 and one or more cargoes appearing in Table 2, 46 CFR part 153, may be carried under this subchapter D if the mixture is flammable or combustible.
(d) Any mixture containing one or more substance categorized by the International Maritime Organization (IMO) and listed in Table 30.25–1 as a category X, Y, or Z noxious liquid substance (NLS) may be carried in bulk—
(1) Under this subchapter D if the vessel is not regulated under 46 CFR part 153;
(2) Under part 153 if the vessel is regulated under that part; or alternatively under 33 CFR part 151 in the case of a category Y oil-like NLS; or
(3) Under 33 CFR part 151 if the cargo is a category Z NLS or a mixture of non-NLS and category Z NLS cargoes.
46 U.S.C. 3306, 3703; Department of Homeland Security Delegation No. 0170.1. Section 150.105 issued under 44 U.S.C. 3507; Department of Homeland Security Delegation No. 0170.1.
(a) The binary combinations listed below have been tested as prescribed in Appendix III to part 150 and found not to be dangerously reactive. These combinations are exceptions to Figure 1 of part 150 (Compatibility Chart) and may be stowed in adjacent tanks.
(b) The binary combinations listed below have been determined to be dangerously reactive, based on either data obtained in the literature or on laboratory testing which has been carried out in accordance with procedures prescribed in Appendix III. These combinations are exceptions to the Compatibility Chart (Figure 1) and may not be stowed in adjacent tanks.
Acetone cyanohydrin (0) is not compatible with Groups 1-12, 16, 17 and 22.
Acrolein (19) is not compatible with Group 1, Non-Oxidizing Mineral Acids.
Acrylic acid (4) is not compatible with Group 9, Aromatic Amines.
Acrylonitrile (15) is not compatible with Group 5 (Caustics).
Alkylbenzenesulfonic acid (0) is not compatible with Groups 1–3, 5–9, 15, 16, 18, 19, 30, 34, 37, and strong oxidizers.
Allyl alcohol (15) is not compatible with Group 12, Isocyanates.
Alkyl (C7-C9) nitrates (34) is not compatible with Group 1, Non-oxidizing Mineral Acids.
Aluminum sulfate solution (43) is not compatible with Groups 5–11.
Ammonium bisulfite solution (43) is not compatible with Groups 1, 3, 4, and 5.
Benzenesulfonyl chloride (0) is not compatible with Groups 5–7, and 43.
1,4-Butylene glycol (20) is not compatible with Caustic soda solution, 50% or less (5).
gamma-Butyrolactone (0) is not compatible with Groups 1–9.
C9 Resinfeed (DSM) (32) is not compatible with Group 2, Sulfuric acid.
Carbon tetrachloride (36) is not compatible with Tetraethylenepentamine or Triethylenetetramine, both Group 7, Aliphatic amines.
Catoxid feedstock (36) is not compatible with Group 1, 2, 3, 4, 5, or 12.
Caustic soda solution, 50% or less (5) is not compatible with 1,4-Butylene glycol (20).
1-(4-Chlorophenyl)-4,4-dimethyl pentan-3-one (18) is not compatible with Group 5 (Caustics) or 10 (Amides).
Crotonaldehyde (19) is not compatible with Group 1, Non-Oxidizing Mineral Acids.
Cyclohexanone, Cyclohexanol mixture (18) is not compatible with Group 12, Isocyanates.
2,4-Dichlorophenoxyacetic acid, Triisopropanolamine salt solution (43) is not compatible with Group 3, Nitric Acid.
2,4-Dichlorophenoxyacetic acid, Dimethylamine salt solution (0) is not compatible with Groups 1–5, 11, 12, and 16.
Diethylenetriamine (7) is not compatible with 1,2,3-Trichloropropane, Group 36, Halogenated hydrocarbons.
Dimethyl hydrogen phosphite (34) is not compatible with Groups 1 and 4.
Dimethyl naphthalene sulfonic acid, sodium salt solution (34) is not compatible with Group 12, Formaldehyde, and strong oxidizing agents.
Dodecylbenzenesulfonic acid (0) is not compatible with oxidizing agents and Groups 1, 2, 3, 5, 6, 7, 8, 9, 15, 16, 18, 19, 30, 34, and 37.
Ethylenediamine (7) and Ethyleneamine EA 1302 (7) are not compatible with either Ethylene dichloride (36) or 1,2,3-Trichloropropane (36).
Ethylene dichloride (36) is not compatible with Ethylenediamine (7) or Ethyleneamine EA 1302 (7).
Ethylidene norbornene (30) is not compatible with Groups 1–3 and 5–8.
2-Ethyl-3-propylacrolein (19) is not compatible with Group 1, Non-Oxidizing Mineral Acids.
Ethyl tert-butyl ether (41) is not compatible with Group 1, Non-oxidizing mineral acids.
Fatty acids, essentially linear, C6-C18, 2-ethylhexyl ester (4) is not compatible with Group 3, Nitric acid.
Ferric hydroxyethylethylenediamine triacetic acid, Sodium salt solution (43) is not compatible with Group 3, Nitric acid.
Fish oil (34) is not compatible with Sulfuric acid (2).
Formaldehyde (over 50%) in Methyl alcohol (over 30%) (19) is not compatible with Group 12, Isocyanates.
Formic acid (4) is not compatible with Furfural alcohol (20).
Furfuryl alcohol (20) is not compatible with Group 1, Non-Oxidizing Mineral Acids and Formic acid (4).
1,6-Hexanediol distillation overheads (4) is not compatible with Group 3, Nitric acid, and Group 9, Aromatic amines.
2-Hydroxyethyl acrylate (14) is not compatible with Group 5, 6, or 12.
Isophorone (18) is not compatible with Group 8, Alkanolamines.
Lactic acid (0) is not compatible with Caustic soda solution.
Magnesium chloride solution (0) is not compatible with Groups 2, 3, 5, 6 and 12.
Mesityl oxide (18) is not compatible with Group 8, Alkanolamines.
Methacrylonitrile (15) is not compatible with Group 5 (Caustics).
Methyl tert-butyl ether (41) is not compatible with Group 1, Non-oxidizing Mineral Acids.
Nitroethane, 1-Nitropropane (each 15% or more) mixture (42) is not compatible with Group 7, Aliphatic amines, Group 8, Alkanol amines, and Group 9, Aromatic amines.
Nitropropane (20%), nitroethane (80%) mixture (42) is not compatible with Group 7 (Aliphatic amines), Group 8 (Alkanol amines), and Group 9 (Aromatic amines).
NIAX POLYOL APP 240C (0) is not compatible with Groups 2, 3, 5, 7, or 12.
o-Nitrophenol (0) is not compatible with Groups 2, 3, and 5–10.
Octyl nitrates (all isomers), see Alkyl(C7-C9) nitrates.
Oleum (0) is not compatible with Sulfuric acid (2) and 1,1,1-Trichloroethane (36).
Phthalate based polyester polyol (0) is not compatible with Groups 2, 3, 5, 7 and 12.
Polyglycerine, Sodium salts solution (20) is not compatible with Groups 1, 4, 11, 16, 17, 19, 21 and 22.
Propylene, Propane, MAPP gas mixture (containing 12% or less MAPP gas) (30) is not compatible with Group 1 (Non-oxidizing mineral acids), Group 36 (Halogenated hydrocarbons), nitrogen dioxide, oxidizing materials, or molten sulfur.
Sodium acetate, Glycol, Water mixture (1% or less Sodium hydroxide) (34) is not compatible with Group 12 (Isocyanates).
Sodium chlorate solution (50% or less) (0) is not compatible with Groups 1–3, 5, 7, 8, 10, 12, 13, 17 and 20.
Sodium dichromate solution (70% or less) (0) is not compatible with Groups 1–3, 5, 7, 8, 10, 12, 13, 17 and 20.
Sodium dimethyl naphthalene sulfonate solution (34) is not compatible with Group 12, Formaldehyde and strong oxidizing agents.
Sodium hydrogen sulfide, Sodium carbonate solution (0) is not compatible with Groups 6 (Ammonia) and 7 (Aliphatic amines).
Sodium hydrosulfide (5) is not compatible with Groups 6 (Ammonia) and 7 (Aliphatic amines).
Sodium hydrosulfide, Ammonium sulfide solution (5) is not compatible with Groups 6 (Ammonia) and 7 (Aliphatic amines).
Sodium polyacrylate solution (43) is not compatible with Group 3, Nitric Acid.
Sodium silicate solution (43) is not compatible with Group 3, Nitric Acid.
Sodium sulfide, hydrosulfide solution (0) is not compatible with Groups 6 (Ammonia) and 7 (Aliphatic amines).
Sodium thiocyanate (56% or less) (0) is not compatible with Groups 1–4.
Sulfonated polyacrylate solution (43) is not compatible with Group 5 (Caustics).
Sulfuric acid (2) is not compatible with Fish oil (34), or Oleum (0).
Tall oil fatty acid (Resin acids less than 20%) (34) is not compatible with Group 5, Caustics.
Tallow fatty acid (34) is not compatible with Group 5, Caustics.
Tetraethylenepentamine (7) is not compatible with Carbon tetrachloride, Group 36, Halogenated hydrocarbons.
1,2,3-Trichloropropane (36) is not compatible with Diethylenetriamine, Ethylenediamine, Ethyleaneamine EA 1302, or Triethylenetetramine, all Group 7, Aliphatic amines.
1,1,1-Trichloroethane (36) is not compatible with Oleum (0).
Trichloroethylene (36) is not compatible with Group 5, Caustics.
Triethylenetetramine (7) is not compatible with Carbon tetrachloride, or 1,2,3-Trichloropropane, both Group 36, Halogenated hydrocarbons.
Triethyl phosphite (34) is not compatible with Groups 1, and 4.
Trimethyl phosphite (34) is not compatible with Groups 1 and 4.
1,3,5-Trioxane (41) is not compatible with Group 1 (non-oxidizing mineral acids) and Group 4 (Organic acids).
Vinyl neodecanoate (13) is not compatible with Group 5, Caustics.
46 U.S.C. 3703; Department of Homeland Security Delegation No. 0170.1. Section 153.40 issued under 49 U.S.C. 5103. Sections 153.470 through 153.491, 153.1100 through 153.1132, and 153.1600 through 153.1608 also issued under 33 U.S.C. 1903(b).
Federal Communications Commission.
Final rule.
In this document, the Commission adopts rules to auction and license ten megahertz of paired spectrum at 1915–1920 MHz and 1995–2000 MHz—the H Block. This action implements the Congressional directive in the Middle Class Tax Relief and Job Creation Act of 2012 (Spectrum Act) that we grant new initial licenses for these spectrum bands through a system of competitive bidding. In so doing, we extend the widely deployed broadband Personal Communications Services (PCS) band, which is used by the four national wireless providers, as well as regional and rural providers, to offer mobile service across the United States. This additional spectrum for mobile use will help ensure that the speed, capacity, and ubiquity of the Nation's wireless networks keep pace with the skyrocketing demand for mobile services.
Effective September 16, 2013 except for 47 CFR 1.2105(a)(2)(xii), 27.12, and 27.17, which contain information collection requirements that have not been approved by the Office of Management and Budget (OMB), Control Number 3060–1184. The Commission will publish a document in the
We also note that several rules that are not being amended herein are subject to OMB review because they are imposing a new information collection upon a new group of respondents, i.e., the H Block licensees. The rules in question are 47 CFR 1.946 and 27.10. The Commission will publish a document in the
Federal Communications Commission, 445 12th Street SW., Washington, DC 20554. A copy of any comments on the Paperwork Reduction Act information collection requirements contained herein should be submitted to the Federal Communications Commission via email to
Matthew Pearl of the Broadband Division, Wireless Telecommunications Bureau, at (202) 418–BITS or
This is a summary of the Commission's
1. Today we increase the Nation's supply of spectrum for flexible-use services, including mobile broadband, by adopting rules to auction and license ten megahertz of paired spectrum at 1915–1920 MHz and 1995–2000 MHz—the H Block. This action implements the Congressional directive in the Middle Class Tax Relief and Job Creation Act of 2012 (Spectrum Act) that we grant new initial licenses for these spectrum bands through a system of competitive bidding. In so doing, we extend the widely deployed broadband Personal Communications Services (PCS) band, which is used by the four national wireless providers, as well as regional and rural providers, to offer mobile service across the United States. This additional spectrum for mobile use will help ensure that the speed, capacity, and ubiquity of the Nation's wireless networks keep pace with the skyrocketing demand for mobile services.
2. In February 2012, Congress enacted Title VI of the Middle Class Tax Relief and Job Creation Act of 2012 (Spectrum Act). The Spectrum Act includes several provisions to make more spectrum available for commercial use, including through a system of competitive bidding, and to improve public safety communications. Among other things, the Spectrum Act states that the Commission, by February 23, 2015, shall allocate the H Block bands—1915–1920 MHz and 1995–2000 MHz—for commercial use, and through a system of competitive bidding grant new initial licenses for the use of each band, subject to flexible use service rules. Congress provided, however, that if the Commission determines that either of the bands cannot be used without causing harmful interference to commercial licensees in 1930–1995 MHz (PCS downlink), then the Commission shall not allocate such band for commercial use or grant new licenses for the use of such band. Additionally, Sections 6401(c)(4) and 6413 of the Spectrum Act specify that the proceeds from an auction of licenses in the 1995–2000 MHz band and in the 1915–1920 MHz band shall be deposited in the Public Safety Trust Fund. Section 6413 of the Spectrum Act specifies how the funds deposited into the Public Safety Trust Fund shall be used, and these purposes include the funding of (or reimbursement to the U.S. Treasury for the funding of) the nationwide, interoperable public safety broadband network by the First Responder Network Authority (FirstNet). The rules we adopt today will enable the H Block spectrum to be the first spectrum specified by the Spectrum Act to be licensed by auction, and thus likely will represent the first steps toward this statutory goal.
3. In response to the Spectrum Act and to help meet the growing demand for wireless spectrum, in December 2012, the Commission adopted the
4. The
5. The spectral proximity of the AWS–4 Band (2000–2020 MHz and 2180–2200 MHz) to the Upper H Block is relevant to the present discussion. The Commission's December 2012
6. In December 2012, the Commission adopted the
7. As observed in the
8. In this
• We find that the Commission's prior action to allocate the H Block for Fixed and Mobile use satisfies the requirement of the Spectrum Act that we allocate this spectrum for commercial use.
• We find that we are required to adopt flexible use service rules for the H Block and that we are required to license this spectrum using a system of competitive bidding, unless we determine that either the 1915–1920 MHz band or the 1995–2000 MHz band cannot be used without causing harmful interference to the broadband PCS downlink band at 1930–1995 MHz.
• We find that, consistent with the technical rules we adopt, the use of both the 1915–1920 MHz band and the 1995–2000 MHz band can occur without causing harmful interference to broadband PCS downlink operations at 1930–1995 MHz.
• We adopt as the H Block band plan the 1915–1920 MHz band paired with the 1995–2000 MHz band, configured as 5 + 5 megahertz blocks, and licensed on an Economic Area (EA) basis.
• We adopt technical rules for the H Block, including rules governing the relationship of the H Block bands to adjacent and nearby bands, with a particular focus on adopting rules for the 1915–1920 MHz band that protect operations in the broadband PCS band at 1930–1995, as required by the Spectrum Act.
• We adopt technical rules that authorize the 1915–1920 MHz band for mobile and low power fixed operations (uplink) and the 1995–2000 MHz band for base and fixed operations (downlink).
• We adopt cost sharing rules that require H Block licensees to pay a
• We adopt a variety of flexible use regulatory, licensing, and operating rules for H Block licensees.
• We adopt procedures to assign H Block licenses through a system of competitive bidding.
9. The Spectrum Act, among other requirements, provides that the Commission shall allocate for commercial use and license using a system of competitive bidding the H Block no later than February 23, 2015.
10. Section 6401(b) of the Spectrum Act provides that for certain spectrum bands, including H Block, the Commission must allocate the spectrum for commercial use and grant new initial licenses for that spectrum through a system of competitive bidding by February 23, 2015. Middle Class Tax Relief and Job Creation Act of 2012, Section 6401(b), 47 U.S.C. 1451(b).
11. To implement these requirements, in the
12. The Spectrum Act requires the Commission to allocate the H Block spectrum bands, 1915–1920 MHz and 1995–2000 MHz, for commercial use. As the Commission observed in the
13. We find that the existing allocation of the H Block for non-Federal Fixed and Mobile use on a primary basis meets the “commercial use” allocation requirement of section 6401(b)(1)(A) of the Spectrum Act. As the record indicates, the Commission has already allocated both blocks of the H Block spectrum for non-Federal Fixed and Mobile use on a primary basis. Specifically, in 2004, the Commission adopted the present spectrum pairing. Thus, no further action to allocate the H Block spectrum bands for commercial use pursuant to the Spectrum Act is necessary.
14. The Spectrum Act also requires the Commission to license the H Block under flexible use service rules. In the
15. We adopt the Commission's proposal to license the H Block under flexible use service rules. We find the Spectrum Act's direction on this matter clear and direct—we are required to grant licenses “subject to flexible-use service rules.” Accordingly, adopting the flexible use service rules for the H Block, which we do in the sections below, will give effect to the legislative mandate. Adoption of flexible use service rules, moreover, is consistent with prior congressional and Commission actions that promote flexible spectrum allocations and the record before us. As CCA comments, flexible use allows licensees to innovate and “rapidly respond to changing consumer demands for wireless services . . . [and] encourage[s] the similarly timely deployment of innovative commercial wireless services to the public.”
16. The Spectrum Act mandates that the Commission grant new initial licenses for the 1915–1920 MHz and 1995–2000 MHz bands through a system of competitive bidding pursuant section 309(j) of the Communications Act. In the
17. The Spectrum Act states that the Commission may not allocate for commercial use or license the H Block if the Commission “determines that” the H Block “cannot be used without causing harmful interference to commercial mobile licensees” in the 1930–1995 MHz band (PCS downlink band). Neither the Spectrum Act nor the Communications Act defines the term “harmful interference.” In performing its statutory role to maximize the public interest in the spectrum, the Commission has adopted a definition for this term, as well as for the unmodified term “interference.” Commission rule 2.1(c) defines “interference” to mean “[t]he effect of unwanted energy due to one or a combination of emissions, radiations, or inductions upon reception in a radiocommunication system, manifested by any performance degradation, misinterpretation, or loss of information which could be extracted in the absence of such unwanted energy.” That same rule defines “harmful interference” to mean “[i]nterference which endangers the functioning of a radionavigation service or of other safety services or seriously degrades, obstructs, or repeatedly interrupts a radiocommunication service operating in accordance with [the International Telecommunications Union] Radio Regulations.” In the
18. We find it appropriate to use the Commission's existing definition of harmful interference. We presume that Congress was aware of this rule, defining both interference and harmful interference, when it crafted the Spectrum Act and used the term harmful interference. Because the Spectrum Act offers no alternative to the Commission's pre-existing definition of
19. The Commission allocated the 1995–2000 MHz band for fixed and mobile use in 2003. In 2004, this spectrum was designated for PCS/AWS base station operations and the Commission proposed service rules. Before the
20. In light of the technical rules we impose on operations in the Upper H Block, described below, we conclude that operations in the 1995–2000 MHz band will not cause harmful interference to PCS operations in the 1930–1995 MHz band. The rules we adopt herein determine the Upper H Block will be used for base station (
21. In designating the 1915–1920 MHz band for PCS/AWS mobile operations in 2004, the Commission concluded that any harmful interference from the Lower H Block to the PCS downlink band (
22. We adopt the Commission's tentative conclusion set forth in the
23. Band plans establish parameters and provide licensees with certainty as to the spectrum they are authorized to use. Here, Congress has identified the H Block bands—1915–1920 MHz and 1995–2000 MHz—as the frequencies for the band plan. To establish the specific band plan for these frequencies, the Commission must determine the block configuration, whether to license the blocks on a geographic area basis and, if so, the appropriate service area. In the
24. In the band plan, based on the record before us, we adopt the H Block band plan of 1915–1920 MHz paired with 1995–2000 MHz, configured as 5 + 5 megahertz blocks, and will license the H Block on an EA basis, including for the Gulf of Mexico. In so doing, we find that 1915–1920 MHz shall be used for mobile and low power fixed (
25. In 2004, the Commission designated the H Block for licensed fixed and mobile services, including advanced wireless services. The Commission further decided to pair 1915–1920 MHz with 1995–2000 MHz because it found that doing so would promote efficient use of the spectrum and allow for the introduction of commercial wireless mobile and fixed services. The Commission also observed that it would be advantageous to use the Lower H Block for low power or mobile operations as the adjacent 1910–1915 MHz band is used by PCS mobile operations, and that high power base stations in the band could result in harmful interference to operations in the PCS band.
26. In the
27. We adopt the proposal to maintain the pairing of 1915–1920 MHz with 1995–2000 MHz. In doing so, we observe that Congress, in enacting the Spectrum Act and directing us to license these bands, did not express disagreement with the Commission's earlier determination to pair these bands. We find this approach in the public interest and find that the benefits of this approach likely outweigh any potential costs. As several commenters discuss, pairing the lower and upper portions of the H Block will promote the efficient use of this spectrum and allow for the proliferation of wireless services. In addition, consistent with the record, we expect that adopting the paired spectrum band plan will facilitate the deployment of wireless fixed and mobile services in rural areas. Further, by licensing the H Block as a paired band, we allay the concerns some commenters expressed about the risk of a stranded, standalone block of spectrum that may be unsuitable for mobile broadband use.
28. Additionally, configuring the H Block as a 5 + 5 megahertz band will allow for flexibility and efficiency in the deployment of wireless services and technologies. Five megahertz blocks can support a variety of wireless broadband technologies. While we do not prescribe a specific technology for use in the H Block, we expect that most users of the band will deploy 4G or 3G Frequency Division Duplex (FDD) technologies. Various globally-standardized technologies, including Wideband-Code Division Multiple Access (W–CDMA), High Speed Packet Access (HSPA), and their variants, use 5 + 5 megahertz paired blocks when deployed as FDD. Long Term Evolution (LTE), which commenters indicate is the most likely technology to be deployed in the H Block in the near term, supports a variety of block sizes, including multiples of 5 megahertz. Thus, as C Spire comments, adopting a 5 + 5 megahertz band plan allows an operator using today's LTE technology to deploy in the band.
29. In adopting this band plan, we also adopt the proposal to prohibit high powered fixed and base station operations in the Lower H band,
30.
31.
32. In the
33. We adopt a geographic area licensing scheme for the H Block for the reasons that the Commission articulated in the
34. In the
35. Comments on the proposal were mixed. Some commenters, including both small and large carriers, supported EA-based licensing, while other commenters opposed EAs and advocated license areas smaller than EAs. While one commenter supported either nationwide or large regional (
36. We will license the H Block on an EA basis. As explained below, licensing based on EAs has been used for similar bands and is a useful and appropriate geographic approach. We believe that licensing the H Block on an EA basis will help us to meet several statutory goals, including providing for the efficient use of spectrum; encouraging deployment of wireless broadband services to consumers; and promoting investment in and rapid deployment of new technologies and services. Given the record before us, we conclude that licensing the H Block on an EA basis is in the public interest and that the benefits of this approach likely outweigh any potential costs.
37. We believe that licensing on an EA-basis strikes the appropriate balance in license size for this band. We find it particularly significant that the two bands adjacent to the H Block, PCS G Block and AWS–4, are licensed on an EA basis. As the record indicates, adopting the same size geographic area as is used in adjacent bands may encourage rapid deployment in and use of the spectrum. Thus, to the extent that licensees for either of those bands ultimately obtain licenses for the H Block, EAs may present opportunities for efficiencies that other geographic license sizes would not offer. For example, AT&T states that EA-based licensing here would be consistent with the Commission's adoption of EA-based licensing in other spectrum bands that will likely be used for mobile broadband. Sprint, moreover, states that the consistent use of EA-based licensing
38. We also believe that licensing this band using EAs will facilitate access to spectrum for both small and large carriers. We believe that it will facilitate access by smaller carriers because EAs are small enough to provide spectrum access opportunities to such carriers. At the same time, EAs are large enough that large carriers can aggregate them up to larger license areas, including into Major Economic Areas (MEAs) and Regional Economic Area Groupings (REAGs), thus achieving economies of scale.
39. Several commenters supported EA-based licensing. For example, as stated above, AT&T and Sprint support EA-based licensing because this band is adjacent to other bands that have been licensed on an EA-basis. MetroPCS explains that EA-based licensing helps to ensure that the bidder that most highly values the spectrum in a particular area acquires that license. C Spire argues that EA-based licensing would “allow for efficient geographic aggregation of licenses. And CCA asserts there are numerous advantages to EA-based licensing, including that it provides “rural and regional carriers [with] reasonable opportunities to bid.”
40. Other commenters opposed EAs as either too large or too small. Commenters proposing smaller geographic license areas advocated for Cellular Market Areas (CMAs), including both Metropolitan Statistical Areas (MSAs) and Rural Service Areas (RSAs). They argued that small and rural carriers cannot afford EAs and that, because EAs include both urban and rural areas, large carriers that purchase EAs can focus their buildout efforts on urban centers to the detriment of rural customers. Another commenter argued that that the H Block should be licensed on a larger-than-EA basis either on a nationwide basis or on a Major Economic Area (MEA).
41. On balance, we are not persuaded that we should adopt geographic license areas smaller or larger than EAs. Rather, we find that—for the H Block—licensing the spectrum on an EA basis best balances the Commission's public interest goals of encouraging widespread geographic buildout (including in rural areas) and providing licensees with sufficient flexibility to scale their networks. We find this particularly so because, as explained above, EA-based licensing will make H Block consistent with two adjacent bands. Moreover, we note that CMAs do not “nest” easily into EAs, which could make it more difficult for licensees to aggregate license areas to match the neighboring bands. Finally, to the extent that an entity desires to obtain access to H Block spectrum for less than an EA geographic area, secondary market transactions (e.g. partitioning) offer a possible way to obtain such access.
42. Finally, we observe that Savari argues that, if the FCC adopts EA-based licensing, it should issue “roadway licenses” that cover highways and areas near highways; areas that, it implies, may lie between EAs. We disagree. To the extent that this commenter suggests that the FCC should issue roadway licenses between EAs, we are not aware of geographic areas that exist between EAs. More generally, we believe that EA, rather than roadway, licenses will lead to more widespread service to consumers in this band. Further, we believe the public interest lies in covering as much area as possible given the economics of the band. In many cases, even in very rural areas, this may extend beyond roadways.
43. In the
44. We will license the H Block for the Gulf of Mexico. We find it appropriate to follow Commission precedent from the AWS–1 and AWS–4 bands, both of which licensed the Gulf as a separate EA license. Moreover, the only party who commented on this issue supports the proposal to make available an EA license for the Gulf. Finally, we determine to apply the existing definition of the Gulf of Mexico EA contained in section 27.6 of the Commission rules when licensing the Gulf. Specifically, the Gulf of Mexico service area is comprised of the water area of the Gulf of Mexico starting 12 nautical miles from the U.S. Gulf coast and extending outward.
45. Pursuant to the statutory direction of the Communications Act of 1934, as amended, the Commission adopts rules for commercial spectrum in a manner that furthers and maximizes the public interest. Notably, when developing policies for a particular band, the Commission looks at other bands that might be affected, particularly the adjacent bands. Consequently, the Commission must often balance competing interests of adjacent bands, and potentially competing public interest considerations, when crafting rules. Because the rules for one band, particularly the interference protection rules, affect the use and value of other bands and thus the public interest benefits that can be realized through the use of those adjacent bands, we take a holistic view when establishing the technical rules for each spectrum band.
46. In this section, we adopt the technical operating rules (
47. We base the technical rules we adopt below on the rules for the AWS and PCS spectrum bands, which have similar characteristics to the H Block and that we therefore expect would permit optimal use of the H Block by its licensees. In applying these rules to the H Block, we specifically adopt rules to adequately protect operations in adjacent bands, including the existing 1930–1995 MHz broadband PCS downlink band and the 2000–2020 MHz AWS–4 uplink band. Finally, given the record before us and the analyses provided below, we conclude that the benefits of the technical rules we adopt herein likely outweigh any potential costs.
48. The Upper H Block is immediately above the 1930–1995 MHz PCS band, which is subject to the Spectrum Act's harmful interference provision. The PCS band currently is used for base station transmit/mobile receive (
49. The Upper H Block is also situated immediately below the 2000–2020 MHz band, which is allocated on a co-primary basis for Fixed, Mobile, and Mobile Satellite (Earth-to-space,
50. We adopt transmitter power limits for the Upper H Block that will maximize the full flexible use of the spectrum while ensuring against harmful interference to adjacent PCS operations and, in the case of the AWS–4 band, adequately protecting adjacent operations due to receiver overload. Receiver overload may result when signals outside of the receiver's nominal bandwidth cause the receiver to experience an increased noise level or produce non-linear responses. In setting power limits, we balance the power necessary to ensure successful communication in the band against the level of interference that adjacent services can tolerate based on their operational needs and the public interests served. In doing so here, we ensure against harmful interference to the adjacent PCS band and, in the case of the adjacent AWS–4 band, set a power limit necessary to ensure successful communication by H Block licensees based on the public interest balancing the Commission established in the
51. In the
52. For H Block operations in the 1995–2000 MHz band, we adopt a power limit for operations in non-rural areas of 1640 watts EIRP for emissions less than 1 MHz and 1640 watts/MHz for emissions greater than 1 MHz. We adopt a power limit for operations in rural areas of 3280 watts EIRP for emissions less than 1 MHz and 3280 watts/MHz for emissions greater than 1 MHz. For purposes of this rule, a rural area refers to a county with a population density of 100 persons or fewer per square mile. Further, we allow operations in excess of the EIRP of 1640 watts and 1640 watts/MHz limits after coordination with adjacent PCS G Block licensees within 120 km, as is allowed for similar operations in the AWS and PCS services. We adopt these power limits because they are the same as those for base stations in other AWS services, including AWS–1 services and the recently adopted limits for AWS–4 base stations and substantially the same as for PCS base stations. Most parties that commented on this issue supported adopting these power limits. As both Sprint and U.S. Cellular observed, the Commission has consistently proposed and adopted these power limits for other services. Additionally, Sprint commented that such power levels will provide adequate protection for PCS licensees in neighboring spectrum bands. No party claimed otherwise. Based on the record and our prior experience with similar services, we conclude that these power limits are consistent with the Spectrum Act's requirement for avoiding harmful interference to the adjacent PCS band. Further, because these limits reflect established measures of efficient use of spectrum for similar services in other bands, we believe they are consistent with the goals of ensuring full, robust, commercial service for mobile broadband, as set forth in the
53. In adopting these power limits for H Block base stations, we acknowledge that wording in the
54. Further, to the extent DISH may be arguing for lower power limits than those in other AWS bands and the PCS band, its argument is unsupported and misplaced. DISH's statement that some existing PCS equipment (we are not aware of equipment presently existing for the H Block band) may operate at lower maximum power levels is not in and of itself dispositive of the appropriate maximum permissible power levels. Rather, this argument appears simply to present an example of PCS equipment operating well within the applicable PCS rules.
55. We also reject DISH's argument that symmetrical power reductions for
56. In sum, we adopt a power limit of 1640 watts EIRP for emissions with less than 1 MHz channel bandwidth and 1640 watts/MHz for emissions greater than 1 MHz in non-rural areas and of 3280 watts EIRP for emissions with less than a 1 MHz channel bandwidth and 3280 watts/MHz EIRP for emissions greater than 1 MHz in rural areas as sufficient to protect PCS licensees in the 1930–1995 MHz band from harmful interference and to adequately protect AWS uplink operations, while enabling H Block licensees to operate full power base stations. Further, we allow operations in excess of the EIRP of 1640 watts and 1640 watts/MHz limits after coordination with adjacent PCS G Block licensees within 120 km, as is allowed for similar operations in the AWS and PCS services.
57. To minimize or eliminate harmful interference between adjacent spectrum blocks, the Commission's rules generally limit the amount of radio frequency (“RF”) power that may be emitted outside of, or in a range of frequencies outside of, the assigned block of an RF transmission. In both the PCS and AWS–1 bands, for example, the Commission established an OOBE limit that requires emissions outside a licensee's assigned spectrum block be attenuated by a level of at least 43 + 10 log
58. To protect operations in adjacent and nearby bands above and below the Upper H Block, the Commission proposed, and sought comment on (including on the associated costs and benefits), a general OOBE limit for H Block base stations of 43 + 10 log
59. For the reasons discussed below, except as otherwise specified, we adopt the proposed OOBE limit of 43 + 10 log
60.
61.
62.
63. In assessing the needs of both Upper H Block and AWS–4 uplink band, we start from an understanding of the current interference environment. Under the Commission's rules, emissions from the PCS downlink band at 1930–1995 MHz, including the G Block (1990–1995 MHz), into the AWS–4 uplink band at 2000–2020 MHz are limited to 43 + 10 log
64. Sprint (which holds all of the licenses for the PCS G Block, as well as some licenses for other PCS blocks) advocated for a limit of 60 + 10 log
65. In maximizing the usefulness of both bands, we seek to set appropriate limits on OOBE such that the overall interference imposed on AWS–4 uplink operations is no more than currently exists, to the greatest extent possible, without imposing a harsh and undue burden on Upper H Block downlink operations. We therefore adopt an OOBE limit of 43 + 10 log
66. In response to the Commission's proposed OOBE limits into the AWS–4 uplink band, parties commented that the proposed limits were both too lenient and too strict. DISH argued that 43 + 10 log
67. We reject both proposals as improperly balanced, with the DISH proposal overly burdensome for a full powered, flexible use H Block and the Sprint proposal too burdensome on AWS–4 operations and unnecessary to allow the Upper H Block licensees full, flexible use of that spectrum.
68. First, we reject DISH's proposal that Upper H Block operations be restricted to an OOBE limit of 55 + 10 log
69. Second, we reject DISH's proposal for an OOBE limit of 79 + 10 log
70. DISH further argued that an OOBE limit of 79 + 10 log
71. Third, we reject DISH's proposed OOBE limit for co-located sites. Specifically, DISH sought an OOBE limit of at least 116 + 10 log
72. We also reject Sprint's proposal to adopt a 60 + 10 log
73.
74. As discussed above, we determine to license the H Block on an EA geographic license area basis. The Commission observed in the
75. We adopt the proposed boundary limit approach for co-channel interference. As discussed above, the Commission will license the H Block on a geographic area basis that is less than nationwide,
76. We set the field strength limit at the boundary at 47 dBµV/m. As the Commission observed in the
77. In adopting this boundary limit, we decline to adopt the alternative limit proposed by Sprint in its Reply. While supporting the boundary limit approach used in other bands, Sprint asserted that we should modify the boundary limit to set a reference measurement bandwidth. In making this recommendation, Sprint claimed that because today's LTE transmissions operate on wider channels than earlier technologies such as CDMA or Digital AMPS, a 47 dBµV/m limit will effectively result in a comparatively lower field strength limit. Specifically, Sprint proposed to adjust the field strength limit from 47 dBµV/m to 62 dBµV/m per MHz. Sprint argued that the power spectral density for a 30 kHz Digital AMPS carrier at a 47 dBµV/m field strength is equivalent to a 62 dBµV/m LTE carrier with a 1 MHz bandwidth, adjusting the field strength limit by the ratio of the bandwidths (10*log
78. Although we agree with Sprint on a conceptual level that a boundary limit that adjusts for large differences in channel bandwidths may be appropriate, we are not persuaded that Sprint's proposed limit represents the optimal solution. Sprint derived the value for the field strength based on a comparison against a 30 kHz Digital Amps signal. Other technologies may be a more appropriate reference upon which to base the value for the field strength. Also, there are other metrics that may be used to limit the signal at the boundary, such as power flux density. We observe that the Commission has already adopted a bandwidth-independent approach when setting boundary limits with Canada and Mexico. For example, certain international limits are expressed as a power flux density (
79. Finally, we adopt the Commission's proposal that adjacent affected area licensees may voluntarily agree upon higher field strength boundary levels that the 47 dBµV/m we adopt above. This concept is already codified in the field strength rules for both PCS and AWS services, as Sprint acknowledged. No party opposed extending this approach to the H Block. Accordingly, to maintain consistency with the PCS and AWS bands, we permit adjacent area licensees to agree to a higher field strength limit.
80. The Lower H Block is immediately above the 1850–1915 MHz PCS band, which is used for mobile transmit/base receive (
81. The Lower H Block is also situated immediately below the 1920–1930 MHz band, which is allocated for Unlicensed PCS purposes (UPCS) and the 1930–1995 MHz PCS base transmit/mobile receive (
82. As discussed above, the Spectrum Act requires the Commission to conduct an auction of the H Block spectrum unless we determine that the H Block frequencies cannot be used without causing harmful interference to commercial mobile service licensees operating between 1930–1995 MHz (PCS downlink). Against this backdrop, commenters generally argued that the Commission should carefully examine the issue of mobile power limits for the Lower H Block and that, if possible, these limits should be based on technical studies. Four parties submitted technical reports into the record that address the possibility of Lower H Block operations causing harmful interference to PCS operations in the 1930–1995 MHz band. Sprint filed a test report accompanying its Reply filing. On April 18, 2013, Verizon Wireless submitted a technical study. On May 13, 2013, and May 14, 2013, T-Mobile and AT&T separately filed a joint test report.
83.
84.
85. We discuss these test reports and the interference scenarios they examined more fully below. At the outset, however, we observe that AT&T, Sprint, T-Mobile, and Verizon Wireless all stated that, subject to appropriate power limits and OOBE limits, mobile operations in the Lower H Block can occur without causing harmful interference to PCS operations in the PCS band at 1930–1995 MHz. Based on our analysis of the record, which we explain in detail in the sections immediately below, we agree that appropriate technical rules will ensure that mobile or low power fixed operations in the Lower H Block do not cause harmful interference to PCS downlink operations.
86. We adopt transmitter power limits for the Lower H Block that will maximize the full flexible use of the spectrum while protecting adjacent operations from harmful interference due to receiver overload. As explained above, receiver overload may result when signals outside of the receiver's nominal bandwidth cause the receiver to experience an increased noise level or produce non-linear responses. Accordingly, we must examine the power limits necessary to avoid harmful interference to PCS downlink licensees under the Spectrum Act and, within this constraint, maximize full flexible use of the Lower H Block.
87. In the
88. The Commission also observed that the 1915–1920 MHz band is allocated for fixed services, but that the possibility of interference from fixed station antennas to PCS mobiles will likely be less than anticipated
89. The record contains three technical studies that examined the potential for Lower H Block operations to cause harmful interference, including overload, intermodulation and interference from out-of-band emissions, to PCS downlink operations. All of these studies assumed that the Lower H Block device would be an LTE FDD mobile device. The Sprint Test Report and the Verizon Wireless Test Report both used existing CDMA devices for the PCS devices. The AT&T/T-Mobile Study used LTE, UMTS, and GSM PCS devices. The studies included testing of the receiver performance of existing PCS devices against overload interference, as well as intermodulation interference that would be caused, in part, by receiver overload. As stated above, receiver overload occurs when the power from a signal outside of the receiver's operating frequency range causes the receiver's performance to degrade. A strong radio frequency (RF) signal can cause the detector in the receiver to operate in a non-linear manner, thereby reducing its ability to decode the desired signal. Intermodulation interference may occur when two RF frequencies pass through a non-linear element in the receive path of the receiver. Two signals at different frequencies passing through a non-linearity will mix and create new frequencies that are related to the sum and the difference of the original signals. These are termed intermodulation products. Although the non-linearity may be caused by hardware flaws, the most common cause of intermodulation interference—and the historical concern for the bands at issue—is from non-linearity that results from receiver overload. Notably, in earlier tests, third order intermodulation products were found to occur within the PCS mobile receiver's B Block frequency range (1950–1965 MHz) due to the mixing the of the PCS mobile device's transmitter frequency (1870–1885 MHz) with the Lower H Block mobile device's transmitter frequency (1915–1920 MHz). Below, we describe the three tests, first presenting the test set-up for all of the tests, followed by the results for all of the tests.
90.
91. In the testing, V–COMM subjected each of the PCS CDMA receivers to several different interfering signals, each with different center frequencies, channel bandwidths and types of modulation. The set of interfering signals were 5 MHz, 3 MHz or 1.4 MHz bandwidth LTE carriers, centered at 1917.5 MHz, 1916.5 MHz and 1919 MHz, respectively. The types of modulation used represented several worst case conditions, such as maximizing power at the control channels located near the edges of the band, a fully loaded device with all resource blocks allocated, or all power concentrated in a single resource block located on a frequency where it would be most likely to create intermodulation products.
92. In total, twelve different types of interfering signals were tested for each device. First, the receiver sensitivity of each device was measured to determine the minimum received power level at which the device would perform properly in the absence of noise. Successful operation was defined as a 0.5% Frame Error Rate (FER). The level of the desired signal was set at either 1 dB or 3 dB above the measured sensitivity level. Then an interfering signal was introduced and its power level increased until the same 0.5% Frame Error Rate was achieved, marking the 1 dB or 3 dB receiver desensitization level. The 1 dB or 3 dB desensitization level is the power of the interfering signal at which the receiver's sensitivity is degraded by 1 dB or 3 dB, respectively. For each test case, both the 1 dB receiver desensitization and 3 dB receiver desensitization levels were recorded.
93. V–COMM then related the interference levels measured in each test case to their effect on the user's experience in two scenarios. In so doing, V–COMM determined the power level of the out-of-band emissions at the output of the H Block transmitter necessary to generate the measured interference levels at the PCS receiver's antenna terminals. The difference between these two signal levels is determined primarily by the distance between the transmitting and receiving devices and by the manner in which the user is handling the device, which affects the amount of head and/or body losses in the transmission path. The two user scenarios were: (1) Both the transmitting and receiving mobile devices were assumed to be held in the user's hand, as would be likely for data use; and (2) both the transmitting and receiving mobile devices were assumed to be held to the user's head, as would be likely for a voice call. The analysis then set forth assumptions of 3 dB for body loss, 8 dB for head loss, a 0 dBi receive antenna gain for both mobile devices, a separation of 1 meter, and free space path loss to the two user scenarios. Application of these assumptions determined the effective interfering signal level at the receiver input of −21 dBm and of −31 dBm, respectively, for the data and voice user scenarios. The device was deemed to operate normally if the power level of the interfering signal that caused receiver desensitization exceeded these values.
94.
95. The AT&T/T-Mobile Test Report is different from the Sprint and Verizon Wireless test reports in other ways, as well. Notably, 7Layers subjected each PCS receiver to two different interfering signals to simulate an H Block mobile device. Both signals represented 5 megahertz LTE carriers operating at a center frequency of 1917.5 MHz, but used different resource block allocations. One signal spread the mobile's power over all 25 resource blocks representing a fully loaded mobile, while the other concentrated the mobile's power in 5 resource blocks, but did not define which five blocks were assigned. By comparison, the Sprint and Verizon Wireless test reports used a total of twelve different LTE signals. Another significant difference in the test plans is that the AT&T/T-Mobile Test Report included for the UMTS PCS devices two desired signal conditions, reflecting both lightly loaded and heavily loaded cell conditions for these devices, whereas the Sprint and Verizon Wireless test reports used one signal condition. The AT&T/T-Mobile used two conditions to simulate “cell breathing” on a CDMA network. In the heavily loaded scenario, the power allocated to each user in the downlink spectrum was reduced and the effective cell coverage was reduced.
96. AT&T and T-Mobile reported results for two GSM devices, up to three UMTS devices (depending on the test scenario), and one LTE device. These results note the power of the interfering signal that would create the specified degradation of the receiver. AT&T and T-Mobile also interpreted the results differently than Sprint and Verizon Wireless, using slightly different assumptions for the user scenario. AT&T and T-Mobile used 25 dBm EIRP as the actual operating power of the H Block mobile, rather than using the nominal 23 dBm EIRP assumed by Verizon Wireless and Sprint. The AT&T/T-Mobile Test Report also did not include any body loss for either the transmitting or receiving mobile. The report therefore used an interfering signal level of −13 dBm as a pass/fail criterion. For point of comparison, Sprint and Verizon Wireless set a −21 dBm criterion for the level of allowed interference for the data user scenario. The AT&T/T-Mobile Test Report also observed that the receive antenna gain used by Sprint and Verizon Wireless was likely optimistic, stating that most mobile receivers have a −1.5 to −3 dBm antenna gain. However, the AT&T/T-Mobile Test Report still adopted the 0 dBi value as it is typically used in link budget calculations.
97.
98. In the Sprint Test Report, in tests for intermodulation and overload of the PCS B Block receiver, the results showed better performance than were observed for overload alone in the PCS A Block. Again, as with the overload tests, all devices met the 3 dB desensitization level for all test cases. Moreover, all devices experienced less than 1 dB of desensitization for the voice call in all instances. There were fewer failures in the data use scenario as well, with four of the six devices meeting the 1 dB desensitization level at less than 1 meter for data use. The other two devices experienced a 1 dB desensitization of their noise floor at distances of greater than 1 meter in half or more of the cases. These results for intermodulation were significantly better than were the results from testing in 2004.
99. After observing the difference in the results for the 1 dB and 3 dB desensitization levels, V–COMM conducted a test using the worst case interfering signal at a 2 dB desensitization level. At this level, all devices passed under the two user scenarios for both overload in the PCS A Block and overload plus intermodulation in the PCS B Block. In other words, no PCS device experienced a 2 dB or greater rise in the noise floor at a 1 meter separation from an H Block mobile device operating at 23 dBm, which is full power under the 3GPP LTE specification.
100.
101. In the tests for intermodulation and overload of the PCS B Block receiver, Verizon Wireless observed better performance than it observed for overload alone in the PCS A Block. As with the overload tests, all devices met the 3 dB desensitization level for all test cases. Six of the eight devices met the 1 dB desensitization level at 1 meter of separation for all of the voice call scenarios. There were ten instances out of a total of 144 (combination of six devices, two user scenarios and 12 interfering signals) in which the device experienced more than 1 dB of desensitization at a 1 meter separation. The two poorest performing devices experienced a 1 dB desensitization of the receiver at a distance of 1 meter in approximately half of the user scenarios. These results for intermodulation were significantly better than were the results from testing in 2004.
102. Just as it did for Sprint, V–COMM also conducted a set of tests using the worst case interfering signal at a 2 dB desensitization level. At this level, all devices passed for the two user scenarios for both overload in the PCS A Block and overload plus intermodulation in the PCS B Block. In other words, no device experienced more than a 2 dB rise of the noise floor at a 1 meter separation from an H Block mobile device operating at 23 dBm,
103.
104. In the tests for intermodulation, the AT&T/T-Mobile Test Report stated that “[n]o B Block performance impairment was noted . . . until the device was exposed to very high H Block signal levels.” Using AT&T and T-Mobile's assumptions, we observe their devices met their criteria in 15 of 18 test cases, over all desensitization levels, when lightly loaded. Based on Commission staff examination, all of the devices would have passed under Sprint and Verizon Wireless's user scenarios.
105. Looking separately at the results for the UMTS devices under high traffic conditions, the AT&T/T-Mobile Test report recorded more sensitivity to interference than under light traffic for the typical design case. Two of four receiver blocking test cases met their stated criteria, as did two of the four intermodulation test cases. We observe that all eight high traffic test cases would meet the criteria under the Sprint and Verizon Wireless data use scenario. Looking at a total of eight test cases for blocking (two devices, two interfering signal types, and two desensitization levels) and eight test cases for intermodulation, the UMTS devices were unable to meet the target BER under high traffic conditions before any interfering signal was applied in all but two of the sixteen cases. In other words, the devices were unable to perform acceptably in the complete absence of interference when the desire signal was set at only 1 dB or 3 dB above the device's sensitivity in high traffic.
106.
107. Based on the record before us, we adopt a power limit for fixed and mobile devices operating in the Lower H Block of 300 milliwatts EIRP, which is equivalent to 25 dBm EIRP. As stated above and in the
108. Consistent with the results of their studies, AT&T, Sprint, T-Mobile, and Verizon Wireless all proposed a power limit of 25 dBm EIRP, which is equivalent to 300 milliwatts EIRP, for operations in the entire Lower H Block. For example, Sprint “recommend[ed] that the Commission adopt a uniform H Block mobile device power limit of +23 dBm EIRP, with a +/− 2 dB implementation margin of tolerance . . . to protect adjacent PCS operations above 1930 MHz.” Verizon Wireless similarly stated that a power limit of 25 dBm EIRP is “the minimum needed to protect existing PCS operations from substantial interference.” AT&T and T-Mobile, in their joint test report, stated that a full power H Block mobile will not create significant impairment to UMTS or LTE devices, but that GSM devices “display noticeable performance impairment when the H Block device transmits at a power level
109. We adopt the proposed limit of 25 dBm EIRP, which is equivalent to 300 milliwatts EIRP, as the power limit for mobile and low power fixed operations in the entire Lower H Block and find, consistent with the Spectrum Act harmful interference condition, that operations subject to this power limit will not cause harmful interference to operations in the PCS downlink band. In adopting a power limit of 300 milliwatts EIRP, we observe that this limit is lower than the limits for other, comparable bands. For example, the power limit for mobile operations in the lower PCS Band (1850–1915 MHz) and in the AWS–4 Band is 2 watts EIRP, and in the AWS–1 Band is 1 watt EIRP. We nevertheless adopt the 300 milliwatts EIRP limit because it will protect against harmful interference to the PCS band, as required by statute, while enabling mobile devices deployed in the Lower H Block to operate at power levels sufficient to provide generally robust service quality, consistent with our goal of enabling efficient use of the band. Notably, in performing the testing and reaching the recommendations, the tests all were conducted assuming an LTE mobile device operating at the maximum power level indicated in the 3GPP LTE specifications—23 dBm. Consequently, adopting a power limit at 300 milliwatts (23 dBm, plus a 2 dBm tolerance) will enable the most likely H Block devices to operate without suffering any actual power restriction. That is, this power limit will permit mobile devices using LTE technology to operate at full power based on their design specifications. Moreover, 300 milliwatts EIRP is the level uniformly supported by the interference tests in the record as protecting against harmful interference into the 1930–1995 MHz PCS band.
110. Although we expect that setting the power limit at 300 milliwatts EIRP will not negatively affect mobile operations in either the Lower H Block or the 1930–1995 MHz PCS band, we observe that the test reports may not have fully captured the probabilistic nature of the interference scenario and that some of the assumptions used in performing the calculations in the interference tests may be overly conservative. It is important to identify these concerns with the test report inputs now so that they can be accounted for in future interference studies submitted to the Commission and because they also affect our analysis of OOBE interference, below. For the purpose of establishing the appropriate power limits, including under the Spectrum Act, the Commission determines what transmitter power level will prevent harmful interference, not simply detectable interference. For mobile-to-mobile interference, this is a probabilistic assessment. As we discuss further below in the discussion of OOBE limits, we find that the studies do not sufficiently account for the low probability of mobile-to-mobile interference actually occurring.
111. We are also concerned with some of the specific assumptions used in the test reports. In its analysis of the test data and stated conclusions for both the Sprint Test Report and the Verizon Wireless Test Report, V–COMM bases its conclusions on a number of assumptions, some of which may not be the most appropriate assumptions for calculating interference limits between nearby mobile systems. V–COMM bases its conclusions on the receiver's performance assuming a 1 meter separation between devices, a 1 dB desensitization level, and a data use case, which assumes 3 dB body loss and no head loss. Similarly, the AT&T/T-Mobile Test Report based its conclusions on a 1 meter device separation and a 1dB desensitization level. Further, unlike Verizon Wireless and Sprint, AT&T and T-Mobile made no provision for head or body loss.
112. First, one of several factors that will determine the likelihood of this probabilistic interference actually occurring is the separation distance between the mobile devices. As discussed below, a 2 meter separation between devices is a more appropriate separation distance than the 1 meter separation distance used in the studies. The Commission has adopted a 2 meter separation in the evaluation of other mobile-to-mobile interference scenarios, most recently in the AWS–4 proceeding. Further, AT&T and T-Mobile's concerns regarding the usefulness of testing under worst case conditions were demonstrated by the results for the high traffic test cases. The tested UMTS devices were unable to perform reliably under high traffic conditions, irrespective of the interference environment. Thus, the AT&T/T-Mobile test report lacks sufficient evidence to support any determination of harmful interference under high traffic conditions.
113. Second, as explained further below in setting OOBE limits, a 3 dB desensitization level is a more appropriate criterion than a 1 dB level upon which to judge harmful interference to mobile devices in cellular networks, which are designed to work in the presence of interference. For example, we observe that industry technical specifications for many types of devices that are currently used in the PCS band allow for a 3 dB degradation of the receiver sensitivity. The 3GPP2 standard for CDMA mobile devices sets the receiver performance requirements for intermodulation spurious response and receiver blocking based on a desired signal level of 3 dB above the reference sensitivity level. Based on the 3GPP2 standard for intermodulation, a CDMA device operating at 1% FER with a desired signal 3 dB above the reference sensitivity level is defined in the standard to be operating normally, and thus may be judged as not experiencing harmful interference. Similarly, the 3GPP standards for UMTS and LTE technologies allow the receiver sensitivity to degrade by 3 dB in response to interference. The LTE standard for receiver blocking is, moreover, is based on a desired signal level 6 dB above the receiver's reference sensitivity, requiring the receiver to perform in the presence of a strong interferer.
114. Third, as explained below, we believe it more appropriate to assume that the devices will be subject to both head and body loss, rather than just body loss. In both the Sprint Test Report and the Verizon Wireless Test Report, V–COMM tested for two different user scenarios. In one scenario, it assumed body loss only (that is, signal loss from proximity to the body, but not the head)—the data scenario. In the other scenario, it assumed signal loss from both the user's body and head—the voice scenario. For the data user scenario, V–COMM used a figure of 3 dB for body loss; for the voice scenario, it used 3 dB for body loss and another 5 dB for head loss. AT&T and T-Mobile did not apply any head or body loss in their analysis of the test results. As we describe further below, we believe it is more reasonable to use the voice user scenario, which includes both head and body loss assumptions, when determining interference rules.
115. We discuss our concerns with the use of these assumptions more fully below in establishing the OOBE limit.
116. Nevertheless, because, as explained above, the power limit that results from these tests will permit the deployment of full power H Block mobile devices in the 1915–1920 MHz band while also protecting commercial mobile service licensees in the 1930–1995 MHz band from harmful interference due to receiver overload, we find it unnecessary to adjust the studies for purposes of establishing power limits for operations in this band. Accordingly, we find it in the public interest, and consistent with the Spectrum Act's condition to protect the PCS downlink band from harmful interference, to set the power limit for mobile and fixed use in the 1915–1920 MHz band at 300 milliwatts EIRP.
117. To minimize harmful interference between adjacent spectrum blocks, the Commission's rules generally limit the amount of RF power that may be emitted outside of the assigned block of an RF transmission. As explained below, we establish an OOBE limit for transmissions outside of the 1915–1920 MHz band of 43 + 10 log
118. To minimize harmful electromagnetic interference between operators, the Commission has previously concluded that, in certain circumstances, attenuating transmitter OOBE by 43 + 10 log
119. As explained above, the record contains three studies that examined the appropriate technical parameters for H Block operations needed to avoid causing harmful interference, including OOBE interference, to existing PCS downlink operations at 1930–1995 MHz.
120.
121.
122.
123.
124.
125. For the reasons discussed below, except as otherwise specified, we adopt the proposed OOBE limit of 43 + 10 log
126.
127.
128.
129.
130. The scenario in the AWS–4 proceeding is on point with that facing us here. In both cases the interference scenario is mobile-to-mobile interference. In both cases, the Commission was faced with establishing an OOBE limit for transmissions from nearby operations into the PCS downlink band at 1930–1995 MHz. In the AWS–4 proceeding, the Commission also examined the same interference scenario into the immediately adjacent
131. In adopting the 70 + 10 log
132. Not only is the OOBE limit of 96 + 10 log
133.
134. In addition, mobile devices do not transmit continuously; rather, they transmit data in bursts. For example, for LTE devices, mobile data is organized in resource blocks, which allocate a set of subcarrier frequencies for a 1 ms (millisecond) time interval. The frequency and duration of these bursts, or number of allocated resource blocks, depends upon traffic loads and signal conditions. For interference to PCS mobile devices to occur the H Block mobile must be transmitting in the same time interval that the PCS device is receiving. Thus, by transmitting in bursts, the likely use of LTE devices in the H Block would further dilute the probability of interference occurring. In addition, wireless networks constantly measure performance and seek to switch devices to alternative resources to improve call quality (
135. The record supports this description of the factors that generally need to occur to give rise to mobile-to-mobile interference. For example, Sprint stated that “many factors come into play for such mobile-to-mobile interference.” It observed that interference would only occur if “(1) the PCS device is attempting to receive a weak signal at the bottom end of the PCS band; (2) the two mobile devices are located very near to each other; and (3) the H block device is transmitting at the same instant, with high power and in the resource blocks at the upper end of the H block.” Verizon Wireless concurred, expressly stating that “Sprint is correct as to the circumstances in which interference will occur.” Accordingly, we reiterate that mobile-to-mobile interference will occur only in specific
136. The risk of mobile-to-mobile interference occurring is influenced by the low probability of these worst-case circumstances occurring—they may occur, but do so infrequently—and by network management practices, such as hand off and power management, that are designed to mitigate against harmful interference. For example, Sprint states that LTE “spreads across the bandwidth, dynamically controlling the power and number of subcarriers assigned to a particular device and reducing the need for constraining OOBE limits.” Moreover, as Sprint observes, “[p]robability certainly plays a large factor as to when [the above] conditions would occur in the real world.” We believe that the probability of each of the described mobile-to-mobile interactions actually occurring is small individually, and quite small viewed in combination. Thus, we disagree with Verizon Wireless's assertion that the combination of circumstances resulting in interference does not “occur only rarely . . . [because] mobile devices are most likely to be located very near to each other at indoor locations where users are likely to receive a weaker signal.” Although the confluence of worst case scenarios may occur more often indoors than outdoors, it does not necessarily follow that these situations occur indoors with any frequency; nor has Verizon Wireless provided any evidence showing that these factors occur frequently indoors. Further, in areas where wireless providers anticipate recurring high density use of mobile devices, providers typically engineer their networks to provide robust coverage, including for indoor locations.
137. We apply our discussion of the probabilistic nature of mobile-to-mobile interference to our evaluations of the test reports, immediately below.
138.
139. We have a number of concerns with the test reports. In particular, as we discuss above, although we do not question the science behind the reports, we find a number of assumptions used by the parties in their interference tests are overly conservative for use in setting reasonable OOBE limits. Specifically, we find the testing (1) failed to fully account for the low probability of mobile-to-mobile interference, (2) assumed an overly conservative required separation distance of 1 meter, (3) relied on limiting interference to an overly conservative 1 dB desensitization level, (4) relied on an overly restrictive user scenario that accounted for body loss only, as opposed to head and body loss, and (5) included an unnecessary manufacturer's tolerance. We address each of our concerns with the test reports, below, in turn.
140. First, the test reports do not fully account for the highly probabilistic nature of OOBE interference from the Lower H Block into the PCS downlink band. As explained above, many low probability factors must occur in conjunction for interference to occur in a mobile-to-mobile scenario. Because our charge is to prevent harmful interference, rather than all interference, accounting for the likelihood that an instance of interference will occur is important in assessing whether the interference scenario rises to the level of harmful interference. For example, as the Commission has said previously, whether the user would actually notice the interference may be an important element of determining if interference is harmful. Except for one factor—separation between devices, which we discuss immediately below—no information provided in the test reports indicates that they accounted (or attempted to account) for the probabilistic nature of the interference. Because the test reports did not fully account for the probabilistic nature of the interference at issue, we believe they overstate the protection from OOBE interference needed by licensees operating in the 1930–1995 MHz band.
141. Second, we examine the one probabilistic factor included in the test reports—separation distance. The selection of the separation distance between devices is a key factor in determining the probability of that interference could occur. As stated above, the Sprint Test Report, the Verizon Wireless Test Report, and the AT&T/T-Mobile Test Report all assumed a separation of 1 meter between devices. A 1 meter separation is often used as a minimum separation distance in industry analyses of mobile-to-mobile interference. Distances of less than 1 meter risk the possibility that near field antenna coupling effects may distort the propagation between the two devices and undermine the assumption of free space path loss. Again, as discussed earlier, the simple presence of interference is not necessarily the same as harmful interference. To determine what interference is sufficient to be considered harmful, one should consider whether there is a reasonable probability that the conditions necessary to create that interference will occur. The Commission has previously supported a separation of 2 meters as an appropriate assumption for the purposes of determining an acceptable level of interference. For example, in the
142. Third, we turn to inputs used in the test reports that are not associated with the probabilistic nature of the interference scenario, and start with the desensitization level. While the reports use a 1 dB desensitization level, we believe a 3 dB level is more appropriate. The Sprint and Verizon Wireless test reports include results of the testing for both the 1 dB and 3 dB desensitization levels, but focused their analysis of the results on the 1 dB desensitization level. For purposes of the AT&T/T-Mobile Test Report, AT&T and T-Mobile designed their test plan to use a 3 dB desensitization of the receiver's sensitivity. The desensitization was based on the device's reference sensitivity per the standard for the technology, rather than by the individual device's measured sensitivity (the approach used by Sprint and Verizon Wireless). AT&T and T-Mobile described this test strategy as a typical design test, observing that most link
143. A 1 dB desensitization level is defined as the level of interference at which the effective noise floor of the system will rise by 1 dB, that is, the receiver sensitivity will be reduced by 1 dB. This occurs when the interfering signal level is 6 dB below the noise floor of the receiver. Similarly, 3 dB desensitization occurs when the level of interference is equal to the level of the receiver's system noise. 1 dB desensitization is most commonly used as an interference protection criterion for noise-limited receiver systems. However, mobile cellular systems are inherently interference-limited; that is, the prevailing interference is greater than noise sources. These systems are designed to perform in a strong interference environment, much of which is often self-generated, coming from other network elements (
144. We believe that a noise-limited interference criterion (1 dB desensitization) is too restrictive for modern cellular systems. This is reflected in industry standards for receiver performance, such as the 3GPP2 standard for CDMA devices. As described above, the 3GPP2 standard for cdma2000 mobile devices sets several receiver performance requirements, including response to receiver overload (blocking) and intermodulation. For example, 3GPP2 Requirement 3.5.2 for Single Tone Desensitization, similar to the intermodulation tests performed by V–COMM, sets the level of the desired signal at either 3 dB or 10 dB above the reference sensitivity level. Similarly, under the 3GPP2 standard, receiver blocking also permits sensitivity to degrade by 3 dB above its reference level in the presence of overload interference while maintaining a 10% FER. CDMA is not the only technology to require the receiver to operate properly in the presence of interference. The 3GPP standard for UMTS and LTE devices specifies an in-band blocking requirement that sets the interfering signal level 6 dB or more above the reference sensitivity level. Further, for GSM, the desired signal is set at 3 dB above reference sensitivity for in-band and out-of-band blocking. These examples demonstrate that a desensitization of 3 dB in the presence of a specific interferer is acceptable in the above standards for determining receiver performance and may be considered normal operation. In other words, these standards bodies have considered a 3 dB desensitization level as an acceptable level of performance and have not viewed it as indicative of harmful interference. In addition, in other proceedings, other parties and the Commission have used a 3 dB desensitization of the receiver in analyzing similar mobile-to-mobile interference scenarios. For example, in addressing a similar mobile-to-mobile interference scenario in the AWS–4 proceeding, the Commission viewed as reasonable a 3 dB desensitization level recommended by Motorola Mobility. Finally, although the AT&T/T-Mobile Test Report used a 1 dB desensitization level for its conclusions, the report states that a 1 dB desensitization level is not typical. The AT&T/T-Mobile Test Report characterized the desired signal conditions used in the Sprint and Verizon Wireless tests as representing worst case conditions. The report noted that “the disadvantage to this approach is that we utilize an operating point that is probably well above the device's actual sensitivity. Thus, a stronger interfering signal is required to realize impairment in performance.” Moreover, in specifically commenting on the appropriate desensitization level, the report states: “The 1 dB desense point was used by AT&T/T-Mobile only because this is one of two operating points utilized in the filings from Sprint and Verizon Wireless. It is not typically used during conformance or performance testing, primarily because the measurement uncertainty associated with it is rather high. The measurement metric (throughput or BER/FER) displays highly non-linear behavior.” We observe that neither Sprint nor Verizon Wireless explain why they used a 1 dB desensitization level. We therefore find that the 3 dB desensitization level to be a more appropriate metric for determining the presence of harmful interference.
145. Fourth, we assess the two user scenarios contained in the Sprint Test Report and the Verizon Wireless Test Report and the different assumptions contained in the AT&T/T-Mobile Test Report. In the Sprint and Verizon Wireless reports, V–COMM made certain assumptions on how the device would be used and set up two user scenarios, one simulating data use and the other simulating a user making a voice call. V–COMM assumed that, during data use, the device would be in held in the user's hand and would experience 3 dB in body loss. If both the interfering and receiving devices were held in the hand, a total of 6 dB of body losses would occur. In the case of a user making a voice call, where the device was held to the user's head, there would be 8 dB of combined head and body losses. Thus, if both the transmitting and receiving users were engaged in a voice call, there would be a total of 16 dB of head and body losses. The analysis provided in the AT&T/T-Mobile Test Report made no provision for either head or body loss in setting the criteria for their analysis. The report stated, however, that “additional losses, such as those attributable to the presence of the user's hand, holding the device to the head, etc., would reduce both the Lower H Block power level and OOBE further.” This statement effectively acknowledges that head and body loss may be appropriate, yet the report does not apply any in the analysis.
146. The specific values of head and body loss can be affected by a number of factors, particularly frequency, and do not have uniformly accepted values. For example, in the recently concluded AWS–4 proceeding, Motorola assumed a 10 dB head and body loss. Both Sprint and Verizon Wireless have adopted an 8 dB head and body loss in their respective test reports. We accept these proposed values for body loss and head loss as within the range of reasonableness for our calculations here. V–COMM calculated the OOBE limit required under both user scenarios. The OOBE limit proposed by both Sprint and Verizon Wireless was based on the assumption that both devices are being used for data. In previous Commission analyses of mobile-to-mobile interference, however, the user scenario has been for voice use; that is, in prior Commission analysis, the total losses attributable to head and body losses have been in the range of as much as 6 to 10 dB for each device (both the transmitting and receiving device). Moreover, interference does not affect voice and data in the same manner. The user is much more likely to notice interference during a voice call than during data use. The provision of voice service requires low latency in the transmission link. Therefore, noise due to interference can be immediately perceptible to the voice user. Harmful interference potentially can cause the voice call to terminate. Data traffic, on the other hand, can be much more sporadic, even under good signal conditions, and can often tolerate some data losses. If interference prevents data from being received and properly
147. Fifth, we are concerned that the Sprint Test Report and the Verizon Wireless Test Report use a 3 dB “implementation margin” to adjust the proposed OOBE limit. The AT&T/T-Mobile Test Report did not include an implementation margin. It is not clear what issue an implementation margin is designed to address or why it is appropriate. In using a 3 dB implementation margin, the test reports adjust the proposed OOBE limit from −69 dBm/MHz to −66 dBm/MHz (
148. In light of all of these concerns with the test reports, we decline to use them as the basis to establish the OOBE limit for Lower H Block emissions into the 1930–1995 MHz band. Rather, as explained above, we find it more appropriate to rely on Commission precedent for the same mobile-to-mobile interference scenario we face here, but from the other end of the PCS band, to establish the OOBE limit. We find that relying on this precedent is preferable to making the numerous adjustments that would be necessary to rely on the studies, particularly given that it may not be possible to fully adjust the studies to account for all of the issues detailed above, including, in particular, the probabilistic nature of the interference. Finally, we observe that our rules contain a savings provision that permits the Commission, in the event that harmful interference occurs, to require greater attenuation than the level we set here.
149.
150.
151. For the reasons stated above, we cannot determine that PCS licensees will experience harmful interference from Lower H Block operations. Nevertheless, we adopt a notification requirement out of an abundance of caution and in light of the specific statutory condition requiring that H Block operations not cause harmful interference to PCS licensees. Although the Commission does not generally require part 27 licensees to provide notification to operators in adjacent or nearby bands when they commence service, the Commission has done so in at least one instance. Specifically, the Commission has required providers of 2.3 GHz WCS, a part 27 service, to provide notification to certain providers operating in nearby spectrum with notice 30 days before commencing operations of a new transmitting site. Here, we have a statute that requires H Block operations not cause harmful interference to PCS downlink operations and a PCS licensee with considerable operations in the lower portion of the PCS A Block—the spectrum in closest proximity to the Lower H Block—stating that a notification requirement would “assist PCS licensees in network planning to reduce the probability of interference.” Thus, while we believe that the technical rules we adopt above are sufficient to prevent harmful interference from Lower H Block operations to PCS licensees operations in the 1930–1995 MHz band, we find adoption of a notification requirement appropriate as an additional safeguard against harmful interference. In the event, contrary to our predictive judgment, that we determine following such notification that H Block uplink operations do result in harmful interference to A Block PCS downlink operations in any particular location, we will take appropriate action to address such situations.
152. In adopting this notification requirement, we provide basic parameters for how the notification shall be provided. We do so to avoid confusion, despite the lack of details contained in the T-Mobile proposal. T-Mobile requested H Block licensees provide PCS A Block licensees with notification when the H Block licensee “turn[s] on service” on a “market-by-market basis.” T-Mobile did not define these terms. Because the interference scenario between the Lower H Block and the PCS downlink band is one of mobile-to-mobile interference, we find it logical (for the sole purpose of the notification requirement we adopt here) to equate turning on service to when a consumer mobile device begins to operate in the band,
153. In the
154. In addition to the specific technical issues addressed above, the Commission also proposed applying additional part 27 rules to the H Block band. Specifically, the Commission proposed applying the following rule sections: § 27.51 (Equipment Authorization); § 27.52 (RF Safety); § 27.54 (Frequency Stability); § 27.56 (Antenna structures; air navigation safety); and § 27.63 (Disturbance of AM broadcast station antenna patterns). The Commission reasoned that because H Block will be licensed as an Advanced Wireless Service under part 27, these rules should apply to all licensees of H Block spectrum, including licensees who acquire their H Block license through partitioning or disaggregation. No commenters opposed this proposal. In the
155. In the
156.
157. In 2003, the Commission sought comment on re-designating all or a portion of the 1910–1920 MHz segment for AWS use. In 2004, the Commission re-designated the 1910–1915 MHz band from the UPCS to Fixed and Mobile services and assigned that spectrum to
158.
159.
160. The Commission proposed these formulas in an effort to ensure that UTAM and Sprint receive full reimbursement after the first auction by effectively apportioning the reimbursement costs associated with any unsold H Block licenses among the winning bidders of all of the licenses sold in the first auction—with an exception in the event a successful bidder's long-form application is not filed or granted, and subject to one contingency, discussed below. The Commission imposes payment obligations on bidders that withdraw provisionally winning bids during the course of an auction, on those that default on payments due after an auction closes, and on those that are disqualified.
161. In addition, the Commission sought comment on the relative costs and benefits of adopting its alternative population based cost-sharing formula as the general rule for the H Block. The Commission acknowledged that using a population based approach in all events would offer bidders greater certainty as to the obligation attached to each license, but would decrease the likelihood that UTAM would be fully compensated for clearing the band after the initial auction.
162. Regardless of which basis the Commission adopts for its cost-sharing formula, the Commission proposed a contingency that would be triggered in the unlikely event that licenses cover less than forty percent of the population of the United States won in the first auction. In such a scenario the population would be measured using 2010 Census data, which is the most recent decennial census data. The
163. The Commission also sought comment, including on the costs and benefits, on the appropriate sunset date for the reimbursement obligation for the Upper H Block. Specifically, the Commission proposed a sunset date for cost-sharing obligations of Upper H Block licensees to Sprint of “ten years after the first [AWS Upper] H Block license is issued in the band.” The Commission reasoned, in part, that because bidders can internalize their reimbursement costs into their bids for H Block licenses, and because winning bidders are the ultimate beneficiaries of the band clearing, this sunset date does not impose undue burdens on the H Block winning bidders.
164. Finally, the Commission proposed that winning bidders must pay UTAM and Sprint, respectively, the amount owed, as calculated pursuant to the formula ultimately adopted by the Commission, within thirty days of grant of their long-form license applications. The Commission sought comment on this proposal, including on its associated costs and benefits.
165.
166. We adopt the cost-sharing proposals and formulas made by the Commission in the
167. Second, we adopt cost-sharing formulas based on gross winning bids, rather than on license area populations. Such an approach will enable both UTAM and Sprint, who cleared the respective bands years ago, to receive full reimbursement after the first auction, as it results in apportioning the reimbursement associated with any unsold H Block licenses among the winning bidders in the first auction. We also adopt the Commission's proposal in the
168. Third, to avoid confusion, we reiterate the Commission's earlier findings that Sprint may not receive reimbursement for the same costs both from AWS entrants into the Upper H Block and from the 800 MHz true-up. For example, in the
169. Fourth, we adopt the Commission's proposal to require winning bidders to pay UTAM and Sprint, respectively, the amounts owed within thirty days of the grant of the winning bidders' long-form license applications. For PCS, AWS–1, and AWS–4 licensees, cost-sharing obligations are triggered when a licensee proposes to operate a base station in an area cleared of incumbents by another licensee. In this case, however, for the Lower H Block, UTAM's members received no benefit for clearing the spectrum nationwide over ten years ago, and the Commission determined in 2003 that the new PCS/AWS licensees entering the band would reap the benefits of UTAM's efforts and that UTAM should be fully reimbursed. Similarly, for the Upper H Block, rather than Sprint itself benefiting from its clearing efforts (except if Sprint is the winning bidder), other entrants in the band will reap the benefits of Sprint's clearing efforts. Consequently, we find it appropriate to set the deadline for H Block winning bidders to reimburse UTAM and Sprint, respectively, at thirty days after the grant of long-form license applications.
170. This prompt payment requirement protects the integrity of the Commission's
171. Fifth, we decline to adopt Sprint's proposal that, in addition to the thirty-day prompt payment requirement, the Commission should not issue Upper H Block licenses until payment has been made. We decline to adopt this proposal because it is inconsistent with the Commission's findings on this issue in the
172. Because we are requiring winning bidders to pay Sprint within thirty days of grant of their long form applications, we expect that Upper H Block licensees will reimburse Sprint well before any sunset date. However, if licenses covering less than forty percent of the population of the United States are granted as a result of the first auction, licensees in subsequent auctions will incur an obligation to reimburse Sprint at a later date, which could make the sunset date relevant. Therefore, we will adopt the Commission's proposal to set a sunset date for the cost-sharing obligations of Upper H Block licensees to Sprint of ten (10) years after the first Upper H Block licenses is issued. This approach is consistent with the record. It is also consistent with the Commission's general
173. The regulatory framework we adopt below establishes the license term, criteria for renewal, and other licensing and operating rules that will govern operations in the H Block. In the
174.
175. We adopt the Commission's proposal to apply section 27.10 of our rules to the H Block. Under this flexible regulatory approach, H Block licensees may provide common carrier, non-common carrier, private internal communications or any combination of these services, so long as the provision of service otherwise complies with applicable service rules. We find that this broad licensing framework is likely to achieve efficiencies in the licensing and administrative process and will provide flexibility to the marketplace, thus encouraging licensees to develop new and innovative services. Thus, based on the record before us, we conclude that this approach is in the public interest and that its benefits likely outweigh any potential costs.
176. We therefore require H Block applicants and licensees to identify the regulatory status of the services or services they intend to provide. Applicants and licensees are not required to describe their particular services in detail, but only to designate the regulatory status of the services. We remind potential applicants that an election to provide service on a common carrier basis typically requires that the elements of common carriage be present; otherwise, applicants must choose non-common carrier status. If potential applicants are unsure of the nature of their services and their classification as common carrier services, they may submit a petition with their applications, or at any time, requesting clarification and including service descriptions for that purpose.
177. The only commenter that directly addressed the Commission's proposal, CCA, stated that “H Block licensees
178. Finally, consistent with the application of this rule for other bands and with the Commission's proposal in the
179. In the
180. In order to fulfill our statutory obligations under section 310 of the Communications Act, we determine that all H Block applicants and licensees shall be subject to the provisions of section 27.12 of the Commission's rules. All such entities are subject to section 310(a), which prohibits licenses from being “granted to or held by any foreign government or the representative thereof.” In addition, any applicant or licensee that would provide a common carrier, aeronautical en route, or aeronautical fixed service would also be subject to the foreign ownership and citizenship requirements of section 310(b).
181. No commenters opposed (or commented on) the Commission's proposal to require all H Block applicants and licensees to provide the same foreign ownership information in their filings, regardless of the type of service the licensee would provide using its authorization. We believe that applicants for this band should not be subject to different obligations in reporting their foreign ownership based on the type of service authorization requested in the application and that the benefits of a uniform approach outweigh any potential costs. Therefore, we will require all H Block applicants and licensees to provide the same foreign ownership information, which covers both sections 310(a) and 310(b), regardless of which service they propose to provide in the band. We expect, however, that we would be unlikely to deny a license to an applicant requesting to provide services exclusively that are not subject to section 310(b), solely because its foreign ownership would disqualify it from receiving a license if the applicant had applied for authority to provide section 310(b) services. However, if any such licensee later desires to provide any services that are subject to the restrictions in section 310(b), we would require that licensee to apply to the Commission for an amended license, and we would consider issues related to foreign ownership at that time.
182. In the
183. Additionally, the Commission explained that Section 6004 of the Spectrum Act does not address eligibility to acquire licenses through transfers, assignments, or other secondary market mechanisms from the initial or subsequence licensee. Section 6004 prohibits a person from participating in an auction if they “ha[ve] been, for reasons of national security, barred by any agency of the Federal Government from bidding on a contract, participating in an auction, or receiving a grant.” The Commission sought comment on whether this provision permits or requires the Commission to restrict eligibility of persons acquiring licenses on the secondary market, whether and to what extent such a restriction is consistent with other provisions of the Communications Act, and what procedures and rules, if any, should apply to persons acquiring licenses on the secondary market. We also asked how to attribute ownership under this provision for applicants that are not individuals.
184. No commenters addressed whether and how Section 6004 applies to secondary market transactions. However, one commenter, AT&T, addressed the larger issue of the open eligibility proposal by commenting that it supports such an approach.
185. We find that nothing in the record demonstrates that we should adopt restrictions on open eligibility. Therefore, we find that open eligibility for the H Block is consistent with our statutory mandate to promote the development and rapid deployment of new technologies, products, and services; economic opportunity and competition; and the efficient and intensive use of the electromagnetic spectrum. We conclude, based on the record before us, that the potential benefits of open eligibility for the H Block outweigh any potential costs.
186. On the issue of whether Section 6004 of the Spectrum Act applies to transfers, assignments, or other secondary market mechanisms, which no commenter addressed, we determine that this section does indeed apply to
187. Access to spectrum is a critical and necessary input for the provision of mobile wireless services, and ensuring the availability of sufficient spectrum is crucial to promoting the competition that drives innovation and investment. Section 309(j)(3)(B) of the Communications Act provides that, in designing systems of competitive bidding, the Commission shall “promot[e] economic opportunity and competition and ensur[e] that new and innovative technologies are readily accessible to the American people by avoiding excessive concentration of licenses.” Section 6404 of the Spectrum Act recognizes the Commission's authority “to adopt and enforce rules of general applicability, including rules concerning spectrum aggregation that promote competition.” In September 2012, the Commission initiated a proceeding to review the mobile spectrum holdings policies that currently apply to both transactions and competitive bidding. The Commission indicated that, during the pendency of this proceeding, the Commission will continue to apply its current case-by-case approach to evaluate mobile spectrum holdings during its consideration of secondary market transactions and initial spectrum licensing after auctions.
188. In the
189. We received a limited number of comments on these issues. A few commenters argued that the Commission should take concrete steps to prevent large carriers from acquiring H Block spectrum, including adopting a bright line spectrum aggregation limit before any H Block auction, while one commenter argued that such an approach would not serve the public interest. With respect to appropriate timing of such determinations, a few commenters argued that the Commission should complete the
190. We find that the limited record on mobile spectrum holdings policies in this proceeding does not support addressing here the issue of whether the acquisition of H Block spectrum should be subject to the mobile spectrum holding policies that apply to frequency bands that are available and suitable for wireless services, particularly given the pendency of the
191. In the
192. We adopt a license term for H Block spectrum rights of ten years and subsequent renewal terms of ten years and we modify section 27.13 of the Commission's rules to reflect these determinations. Given the record before us, we find that this approach is in the public interest and find that its benefits outweigh any potential costs. C Spire, T-Mobile, and U.S. Cellular expressed support for ten-year license terms, and no commenter opposed license terms of that length. C Spire stated that a ten-year license term would be “appropriate because it would provide consistency with other spectrum blocks and afford each licensee more than enough time to design, acquire the necessary equipment and devices, and deploy facilities across nearly all of the licensed area.” U.S. Cellular and T-Mobile also pointed out that by imposing a ten-year license term, the Commission would be treating H Block the same way it treats many wireless services. We agree that our decision to license H Block in ten-year terms is consistent with most other part 27 services and with services using similar spectrum, such as the PCS spectrum that is adjacent to the H Block.
193. In addition, we adopt the Commission's proposal that, if an H Block license is partitioned or disaggregated, any partitionee or disaggregatee would be authorized to hold its license for the remainder of the partitioner's or disaggregator's original license term. No commenter addressed this proposal. We note, however, that this proposal is similar to the partitioning and disaggregation provisions that the Commission adopted for BRS, broadband PCS, 700 MHz, AWS–1, and AWS–4. We emphasize that nothing in this action is intended to enable a licensee, by partitioning or disaggregation, to be able to confer greater rights than it was awarded under the terms of its license grant; nor would any partitionee or disaggregatee obtain rights in excess of those previously possessed by the underlying Commission licensee.
194. The Commission establishes performance requirements to maximize the productive use of spectrum, to encourage licensees to rapidly provide service to customers, and to promote the provision of innovative services in all license areas, including rural areas. We continue to believe that performance requirements play a critical role in ensuring that licensed spectrum does not lie fallow. We therefore adopt performance requirements that will ensure the rapid deployment of wireless service in the H Block, while giving licensees sufficient flexibility to deploy services according to their business plans. Specifically, we adopt the following buildout requirements:
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195. We find, based on the record before us, that these performance requirements are in the public interest and that the benefits of these requirements outweigh any potential costs. We explain the rationale for these performance requirements below.
196.
197. The Commission proposed specific consequences, or penalties, in the event a licensee fails to satisfy its buildout requirements. The Commission proposed that, if a licensee fails to meet the interim benchmark in its license area, the term of the license would be reduced by two years. And the Commission proposed that, if a licensee fails to meet the final benchmark, the H Block license for each license area in which it fails to meet the buildout requirement would automatically terminate without Commission action.
198. Commenters generally supported the Commission's proposals, but some had specific recommendations for modifying them. Several commenters supported the proposed forty percent interim buildout requirement, while others proposed a slightly less stringent benchmark or opposed any interim benchmark at all. Commenters generally supported the proposed seventy percent final buildout requirement, with individual commenters proposing a slightly more or less stringent benchmark. However, commenters generally opposed the proposed penalties for failure to satisfy the interim and final buildout requirements.
199. Consistent with the Commission's approach to performance benchmarks in other bands—including the AWS–4 band, the 2.3 GHz WCS band, and the Upper 700 MHz C-Block—we adopt objective interim and final buildout benchmarks. Requiring H Block licensees to meet our performance requirements—providing reliable coverage and service to at least forty percent of the population in each license area in four years and at least seventy-five percent of the population in each license area in ten years—will further the public interest by ensuring that spectrum will be put to use and by promoting the rapid deployment of new broadband services to the American public. It will also provide licensees with certainty regarding their construction obligations. These performance requirements are reasonable, both temporally and quantitatively, and will enable the Commission to take appropriate corrective action should the required deployment fail to occur. Further, we observe that commenters generally agreed with the proposed performance requirements, albeit with some of those commenters seeking slight modifications.
200.
201. We reject the arguments of some commenters that the benchmarks should instead be measured geographically. While we agree that it is important to ensure service is provided in rural areas, we believe that population-based benchmarks are necessary to ensure that H Block licensees have flexibility to scale their networks in a cost efficient manner while they are attempting to meet performance requirements. Specifically, because of the substantial capital investment and logistical challenges associated with a licensee building out a network, we believe that measuring benchmarks within an EA according to population is more appropriate. We also agree with MetroPCS that population served is a more accurate measure of useful coverage for this band. Finally, while we are adopting population-based benchmarks for the H Block, nothing in this decision forecloses the
202.
203. We are not persuaded by MetroPCS's argument that interim benchmarks are unrealistic and counterproductive, and that licensees have sufficient financial incentives to build out quickly without these benchmarks. We find that the performance requirements we adopt in the H Block will provide licensees with an ability to scale networks in a cost efficient manner while also ensuring that the vast majority of the population will have access to wireless broadband services by the final benchmark. And while we recognize that licensees in many cases have economic incentives to build out, we believe that objective performance requirements are an important means of ensuring that there is meaningful deployment of broadband services in the H Block in the near future, consistent with our obligations to adopt rules and license spectrum in the public interest.
204. We disagree with U.S. Cellular and C Spire that thirty-five percent of total population is a more appropriate benchmark, and we disagree with Sprint that in cases where a licensee acquires multiple EA licenses, the benchmark should be thirty-five percent of the total population covered by all EA licenses. While we believe that forty percent and thirty-five percent are both realistic interim buildout requirements, we find that a forty percent benchmark will better ensure that underutilized spectrum is quickly utilized for the benefit of consumers in the public interest. U.S. Cellular claims that a thirty-five percent benchmark is more consistent with the Commission's treatment of the 700 MHz band; however, the thirty-five percent interim benchmark in the 700 MHz band only applied geographic-based, not population-based, benchmarks for the 700 MHz A and B blocks. In contrast, 700 MHz C Block, which is subject to population-based benchmarks, had an interim benchmark of 40 percent. Because all H Block licensees will be subject to a population-based benchmark, not a geographic-based benchmark, the example of the 700 MHz band actually suggests that we should adopt a forty-percent interim buildout requirement. Finally, we decline to adopt Sprint's proposal, which would allow a licensee with multiple EA licenses to meet the interim benchmark while underutilizing some of those EAs for no other reason than the fact that it acquired more than one EA. Where, as here, we are assigning initial licenses for spectrum, we expect applicants will file for spectrum licenses only in areas in which they intend to put the spectrum to use.
205.
206. While we decline to adopt a standard buildout requirement for all bands in this proceeding, we agree that the final benchmark should be set at seventy-five percent, rather than seventy percent. In our view, a final benchmark of seventy-five percent is more closely aligned with final benchmarks in other similar bands, including 700 MHz and AWS–4. Specifically, for the 700 MHz C Block, the Commission adopted a ten year performance benchmark and a seventy-five percent buildout requirement. Applying a seventy-five percent buildout requirement here, where we similarly have a ten-year time period, treats H Block licensees in a similar manner as 700 MHz licensees. Our decision is also consistent with last year's
207. The Commission also sought comment on whether performance requirements should be relaxed if an AWS–4 licensee reaches private operator-to-operator agreements with all 1995–2000 MHz licensees so that AWS–4 operations above 2000 MHz may operate with a more relaxed OOBE limit than 70 + 10 log
208. We adopt the
209.
210.
211. AT&T and U.S. Cellular both opposed the proposed penalties. They argued that automatic termination is too punitive, would negatively affect investment and auction participation and revenues, and would harm the public. We disagree with these assertions. First, as a general matter, we expect that the probability is small of licensees not meeting the performance requirements because of the costs of meeting them. Further, we expect licensees will generally deploy in excess of the levels set in the buildout benchmarks and that these requirements generally represent a floor, not a ceiling, in a licensee's buildout. As for the assertion that automatic termination is too punitive, the Commission has explained in the past that we do not consider automatic termination to be overly punitive or unfair, particularly given that the Commission has applied this approach to nearly all geographically licensed wireless services. Further, the Commission has rejected the argument, and we do so again here, that an automatic termination penalty would deter capital investment, observing that the wireless industry has invested billions of dollars and has flourished under this paradigm in other spectrum bands. For the same reason, we believe that an automatic termination penalty will have little effect on auction participation. Finally, we do not agree that automatic termination would harm the public because, even if a customer loses service when a licensee loses its spectrum rights, we expect that a future licensee for that EA would ultimately serve more customers.
212. We are not persuaded by the AT&T and U.S. Cellular argument that the Commission should adopt a keep-what-you-use approach instead of an automatic termination penalty. AT&T maintained that keep-what-you-use rather than automatic termination is consistent with the requirements applicable to other comparable services; to support this assertion, it cited the rules that apply to the commercial licenses in 700 MHz. We observe, however, that the keep-what-you-use approach in 700 MHz is the exception rather than the rule and that the Commission adopted that approach for 700 MHz band spectrum, in part, in light of other specific service rule determinations for that band, including the specific geographic license areas used for parts of that band (
213. We further adopt the
214. We adopt the proposal in the
215. We emphasize that electronic coverage maps must accurately depict the boundaries of each license area in the licensee's service territory. If a licensee does not provide reliable signal coverage to an entire EA, its map must accurately depict the boundaries of the area or areas within each EA not being served. Each licensee also must file supporting documentation certifying the type of service it is providing for each EA within its service territory and the type of technology used to provide such service. Supporting documentation must include the assumptions used to create the coverage maps, including the propagation model and the signal strength necessary to provide reliable service with the licensee's technology.
216. The licensee must use the most recently available decennial U.S. Census Data at the time of measurement to meet the population-based buildout requirements. Specifically, the licensee must base its claims of population served on areas no larger than the Census Tract level.
217. As the Commission explained in the
218. The Commission proposed that applicants for renewal of H Block licenses file a “renewal showing,” in which they demonstrate that they have been and are continuing to provide service to the public, and are compliant with the Communications Act and with the Commission's rules and policies. The Commission proposed that the same factors that were applied in the
219. The Commission also sought comment on whether the public interest would be served by awarding H Block licensees renewal expectancies if they maintained the level of service demonstrated at the ten-year performance benchmark through the end of their license term, provided that they have otherwise complied with the Communications Act and the Commission's rules and policies during their license term. The Commission sought comment on whether H Block licensees should obtain renewal expectancies for subsequent license terms, if they continue to provide at least the level of service demonstrated at the ten-year performance benchmark through the end of any subsequent license terms.
220. Finally, the Commission proposed that, consistent with the
221. The Commission sought comment on these proposals, including the associated costs and benefits. Comments were mixed regarding the primary proposal to impose renewal requirements consistent with those adopted in the
222. Pursuant to section 308(b) of the Communications Act and consistent with the Commission's rules as they apply to other similar bands, we find that all H Block licensees seeking renewal of their authorizations at the end of their license term must file a renewal application, demonstrating that they have been and are continuing to provide service to the public over the license term (or, if consistent with the licensee's regulatory status, it used the spectrum for private, internal communication), and are otherwise complying with the Commission's rules and policies (including any applicable performance requirements) and with the Communications Act. In so finding, we emphasize, as the Commission has done repeatedly in recent years, that the concept of a renewal showing is distinct from a performance showing. A performance showing provides a snapshot in time of the level of a licensee's service, while a renewal showing provides information regarding the level and types of service provided over the entire license term. As the Commission has explained in setting rules for other bands, a licensee that meets the applicable performance requirements might nevertheless fail to meet the renewal requirements. Specifically, we adopt the following renewal criteria requirements. We require the renewal showing to include a detailed description of the renewal applicant's provision of service during the entire license period and discuss: (1) The level and quality of service provided by the applicant (
223. In addition, as the Commission did in the
224. We are not persuaded by commenters who opposed the proposed renewal standard. For example, MetroPCS and T-Mobile argued that the FCC should refrain from imposing the proposed renewal standard on H Block licensees, claiming that the proposed standard is vague. Additionally, MetroPCS argued that the proposed standard will undermine the renewal expectancy that allows licensees to secure long-term financing. We disagree. Instead, we believe that the renewal standard provides sufficient certainty. For example, the renewal standard we adopt today is based on that used for 700 MHz commercial licensees. We are unaware of any significant effect on the ability of 700 MHz applicants or licensees to obtain financing resulting from the use of this renewal standard in the 700 MHz proceeding.
225. T-Mobile also pointed out that the same renewal standard is under consideration in the pending WRS Renewals proceeding, and therefore argued that the Commission should more broadly address it there. We agree with T-Mobile that the WRS Renewals proceeding offers the Commission an opportunity to comprehensively consider whether it should adopt a renewal standard that generally applies to all bands, and if so, what that standard should be. However, contrary to T-Mobile's suggestion that we are departing from a generic renewal standard by “uniquely” applying the proposed renewal standard to the H Block, the Commission has thus far declined to adopt generic criteria for renewal showings. Moreover, at least two spectrum bands, 700 MHz and AWS–4, have renewal criteria identical
226. Finally, we decline to adopt U.S. Cellular's proposal that the Commission categorically provide licensees that satisfy the performance requirements with renewal expectancies. In the ordinary course, we expect that licensees that meet their interim benchmark and maintain that level of service while increasing service levels towards compliance with the end-of-term benchmark will likely be able to demonstrate that they satisfy the renewal criteria delineated above. However, we decline to adopt the rule U.S. Cellular proposes that equates mere compliance with the performance benchmarks with a renewal justification because, as the Commission has explained and as we reiterated above, performance requirements and renewal showings are two distinct requirements that involve different showings, serve different purposes, and have different remedies. We decline to state categorically that a licensee that simply meets the interim and final performance requirements will automatically obtain a renewal expectancy. For example, a licensee would be unlikely to obtain renewal at the end of the license term where it met the applicable “snap shot” interim benchmark by providing signal coverage and offering service for a single day just prior to the interim benchmark, but then merely offers service once every 180 days to avoid permanent discontinuance of operation until reaching the end-of-term benchmark. We agree with U.S. Cellular that a licensee that obtains a license renewal at the end of the initial license term under the standard set forth above, and then maintains or exceeds the end-of-term seventy-five percent population coverage and offering of service level through subsequent license terms, reasonably could expect, absent extraordinary circumstances, that it would receive subsequent license renewal.
227. In the
228. In addition, the Commission proposed that, consistent with section 1.955(a)(3) of the Commission's rules, if a licensee permanently discontinues service, the licensee must notify the Commission of the discontinuance within ten days by filing FCC Form 601 or 605 and requesting license cancellation. However, the Commission explained that even if a licensee fails to file the required form, an authorization will automatically terminate without specific Commission action if service is permanently discontinued. The Commission sought comment on these proposals, including the associated costs and benefits.
229. We determine that section 1.955(a)(3) of the Commission's rules will apply to any H Block licensee and find that the benefits of applying this rule outweigh any potential costs of doing so. Thus, an H Block operator's authorization will automatically terminate, without specific Commission action, if service is “permanently discontinued.” For providers that identify their regulatory status as common carrier or non-common carrier, we define “permanently discontinued” as a period of 180 consecutive days during which the licensee does not provide service to at least one subscriber that is not affiliated with, controlled by, or related to, the provider in an EA (or smaller service area in the case of a partitioned EA license). We adopt a different approach, however, for licensees that use their licenses for private, internal communications, because such licensees generally do not provide service to unaffiliated subscribers. For such private, internal communications, “permanent discontinuance” shall be defined as a period of 180 consecutive days during which the licensee does not operate. This approach is consistent with the discontinuance rule that the Commission has adopted for the adjacent AWS–4 band, and the only party to comment on this rule, T-Mobile, expressed support for this approach.
230. We believe that using this approach in H Block strikes the appropriate balance between affording licensees operational flexibility and ensuring that licensed spectrum is efficiently utilized. In addition, our determination will ensure that spectrum does not lie fallow and will facilitate business and network planning by providing certainty to licensees and their investors. A licensee will not be subject to the discontinuance rules until the date it must meet its first performance requirement benchmark (four years from the license grant), which provides the licensee with adequate time to construct its network.
231. Furthermore, in accordance with section 1.955(a)(3) of the Commission's rules, if a licensee permanently discontinues service, the licensee must notify the Commission of the discontinuance within ten days by filing FCC Form 601 or 605 and requesting license cancellation. However, even if the licensee fails to file the required form requesting license cancellation, an authorization will automatically terminate without specific Commission action if service is permanently discontinued.
232. Finally, as the Commission has previously explained, the operation of so-called channel keepers,
233. Part 27 of the Commission's rules generally allows licensees to partition and disaggregate their spectrum. “Partitioning” is the assignment of
234. In the
235. We adopt the proposal in the
236. As the Commission has explained many times in the past, partitioning and disaggregation promote the efficient use of spectrum and help to expedite the provision of service to rural and other underserved areas of America as well as to niche markets. Further, by allowing H Block licensees to partition and disaggregate to the same degree as other wireless licensees providing like services, the Commission promotes competition among wireless service providers.
237. We further conclude that the public interest would be served by requiring, as we proposed in the
238. In 2003, in an effort to promote more efficient use of terrestrial wireless spectrum through secondary market transactions and to eliminate regulatory uncertainty, the Commission adopted a comprehensive set of policies and rules governing spectrum leasing arrangements between terrestrial licensees and spectrum lessees. These policies and rules permitted terrestrially-based Wireless Radio Service “licensees holding exclusive use [spectrum] rights” to lease some or all of the spectrum usage rights associated with their licenses to third party spectrum lessees, which then would be permitted to provide wireless services consistent with the underlying license authorization. The Commission adopted these policies and rules in order to promote more efficient, innovative, and dynamic use of the terrestrial spectrum, to expand the scope of available wireless services and devices, to enhance economic opportunities for accessing spectrum, and to promote competition among terrestrial wireless service providers. In 2004, the Commission expanded on this spectrum leasing framework by establishing immediate approval procedures for certain categories of terrestrial spectrum leasing arrangements and extending the spectrum leasing policies to additional Wireless Radio Services. Since then, the Commission has extended these policies to still more Wireless Radio Services.
239. In the
240. We adopt the proposal in the
241. The record unanimously supports our decision. For example, we agree with CCA that applying our current spectrum leasing rules to H Block will increase the use and utility of the H Block by allowing a diverse group of parties to efficiently and dynamically use the spectrum. We also agree with MetroPCS that applying our current spectrum leasing rules will
242. In the
243. While we are generally adopting part 27 rules for the H Block, in order to maintain general consistency among various wireless communication services, we also require any licensee of H Block operating authority to comply with other rule parts that pertain generally to wireless communication services. For example, section 27.3 of the Commission's rules lists some of the other rule parts applicable to wireless communications service licensees generally; we thus find it appropriate to apply this and similar rules to the H Block. Some of these other rule parts will be applicable by virtue of the fact that they apply to all licensees, and others will apply depending on the type of service that a licensee provides. For example:
• Applicants and licensees will be subject to the application filing procedures for the Universal Licensing System, set forth in part 1 of our rules.
• Licensees will be required to comply with the practices and procedures listed in part 1 of our rules for license applications, adjudicatory proceedings, etc.
• Licensees will be required to comply with the Commission's environmental provisions, including section 1.1307.
• Licensees will be required to comply with the antenna structure provisions in part 17 of our rules.
• To the extent a licensee provides a Commercial Mobile Radio Service, such service is subject to the provisions in part 20 of the Commission's rules, including 911/E911 requirements, along with the provisions in the rule part under which the license was issued.
• To the extent a licensee provides interconnected VoIP services, the licensee will be subject to the E911 service requirements set forth in part 9 of our rules.
• The application of general provisions in parts 22, 24, 27, or 101 will include rules related to equal employment opportunity, etc.
244. On one issue in particular, we specifically received comment seeking the application of broader rules to H Block licensees. On the issue of hearing-aid compatibility, we conclude that our Part 20 hearing-aid compatibility (HAC) requirements will apply to H Block services in the same manner and to the same extent as those requirements apply to any wireless services under the part 20 HAC rules. Thus, to the extent a licensee provides a Commercial Mobile Radio Service, such service is subject to the hearing-aid compatibility requirements in part 20 of the Commission's rules.
245. The Hearing Industries Association commented that the Commission should “ensure the full applicability of the hearing aid compatibility rule as it unleashes new spectrum—in this instance the H Block.” It pointed out that “Congress has clearly directed the Commission to ensure that as devices continue to advance into multifaceted devices capable of more than traditional voice capabilities that the HAC rules continue to apply.” HIA also argued that as technology advances and new spectrum is unleashed, “the FCC must consider function to ensure that hearing-aid users are not locked out of fully participating in the larger economy and society.” Thus, it argued that the HAC rules must “focus on whether a device is used for two-way talk and how it couples with the human ear more than the name of the device or its advertised `primary' purpose.” Another commenter submitted arguments that addressed the Commission's HAC rules and Specific Absorption Rate (SAR) emissions rules. Mr. Johnson's comments contained general arguments that were not specifically related to H Block.
246. We agree that the Commission's HAC rules should apply to services provided in the H Block in the same manner that they apply to services provided in other bands. To the extent that comments could be read as asking for a broader review of the Commission's hearing-aid compatibility rules (or the Commission's RF safety rules), however, we decline to conduct such a review in this band-specific proceeding because we do not believe this proceeding is the appropriate proceeding for us to conduct a general review and revision of those rules.
247. The
248. We adopt the proposal in the
249. We will conduct any auction for H Block licenses pursuant to our standard competitive bidding rules found in part 1, subpart Q of the Commission's rules and will provide bidding credits for qualifying small businesses, as proposed in the
250. The Commission proposed to conduct any auction for H Block licenses in conformity with the general competitive bidding rules set forth in part 1, subpart Q, of the Commission's rules, and substantially consistent with the competitive bidding procedures that
251. Commenters generally support our proposed use of standard competitive bidding rules for an auction of H Block licenses. One of those commenters, MetroPCS, asserts that the Commission should avoid the use of procedures that may “unduly complicate auctions” or otherwise “limit the ability of smaller bidders to acquire spectrum.” Another argues that the Commission should not depart from its standard simultaneous multiple-round format for an H Block auction. Based on our review of the record and our prior experience with conducting auctions, we determine that the Commission's Part 1 bidding rules should govern the conduct of any H Block auction.
252. The
253. We will implement this Spectrum Act mandate by adding a national security certification to the various other certifications that a party must make in any application to participate in competitive bidding as required under our existing rules. As with other required certifications, an auction applicant's failure to include the required certification by the applicable filing deadline would render its short-form application unacceptable for filing, and its application would be dismissed with prejudice.
254. As discussed in the
255. In the
256. The Commission proposed in the
257. This proposal was modeled on the small business size standards and associated bidding credits that the Commission adopted for the AWS–1 band. The Commission believed that the H Block would be employed for purposes similar to those for which the AWS–1 Band is used. The
258. The Commission sought comment on these proposals, including the costs or benefits of these standards and associated bidding credits, especially as they relate to the proposed EA-defined geographic area licensing approach. The Commission specifically sought comment on whether the small business provisions we proposed are sufficient to promote participation by businesses owned by minorities and women. Those addressing small business credits generally support the Commission's proposals.
259. RTG supports the Commission's proposed bidding credits, and argues for creation of an additional size standard under which auction applicants with average gross revenues not exceeding $75 million for the preceding three years would receive a 10 percent bidding credit. RTG asserts that this additional bidding credit tier would help “slightly larger small and rural telephone companies to compete for spectrum with nationwide carriers on a more level playing field.” Similarly, Broadband Properties seeks adoption of a 35 percent bidding discount for “smaller operators,” though it does not state what size firm might be considered to be a “smaller operator.” The Commission has previously considered and rejected RTG's efforts to create an additional rural telephone company bidding credit. In so doing, the Commission observed that RTG and
260. MetroPCS argues that we should adopt a scale of bidding credits based on an entity's spectrum holdings in a particular geographic area in lieu of credits based on small business size. MetroPCS would also bar an auction applicant from acquiring any license that would cause it to exceed the spectrum screen in effect prior to the allocation of the spectrum to be offered at auction. AT&T and Sprint call on the Commission to reject MetroPCS's alternative bidding credit plan. AT&T argues that “[t]his proposal is little more than an attempt to achieve . . . restrictions on auction participation based on spectrum holdings” which it contends would be “anticompetitive and unlawful.” We find that MetroPCS's proposal fundamentally involves issues of spectrum aggregation policy, and that those issues would be more properly addressed in the separate
261. Based on our prior experience with the use of bidding credits in spectrum auctions, we believe that the use of bidding credits is an effective tool in achieving the statutory objective of promoting participation by designated entities in the provision of spectrum-based services. In the absence of small business size standards and bidding credits, designated entities might have less opportunity to obtain spectrum in this band. The Commission believes that continuing to extend such benefits to the H Block would be consistent with our statutory mandate. In light of the similarities with the AWS–1 service, we adopt these size standards and associated bidding credits for small businesses. We have requested SBA approval of these size standards. Moreover, we continue to believe that use of the small business size standards and credits set forth in the part 1 schedule provides consistency and predictability for small businesses. Specifically, we will define a small business as an entity with average gross revenues for the preceding three years not exceeding $40 million, and a very small business as an entity with average gross revenues for the preceding three years not exceeding $15 million. For the H block, small businesses would be provided with a bidding credit of 15 percent and very small businesses with a bidding credit of 25 percent, consistent with the standardized schedule in part 1 of our rules. Given the record before us and the benefits discussed above, we conclude that the potential benefits of our proposals would likely outweigh any potential costs.
262. The Regulatory Flexibility Act (RFA) requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” Accordingly, we have prepared a Final Regulatory Flexibility Analysis (FRFA) concerning the possible impact of the rule changes contained in the
263. Demand for wireless broadband services and the network capacity associated with those services is surging, resulting in a growing demand for spectrum to support these services. Adoption of smartphones increased at a 50 percent annual growth rate in 2011, from 27 percent of U.S. mobile subscribers in December 2010 to nearly 42 percent in December 2011. Further, consumers have rapidly adopted the use of tablets, which were first introduced in January of 2010. By the end of 2012, it was estimated that one in five Americans—almost 70 million people—would use a tablet. Between 2011 and 2017, mobile data traffic generated by tablets is expected to grow at a compound annual growth rate of 100 percent. New mobile applications and services, such as high resolution video communications, are also using more bandwidth. For example, a single smartphone can generate as much traffic as thirty-five basic-feature mobile phones, while tablets connected to 3G and 4G networks use three times more data than smartphones over the cellular network. All of these trends, in combination, are creating an urgent need for more network capacity and, in turn, for suitable spectrum.
264. The 2010
265. In February 2012, Congress enacted Title VI of the Middle Class Tax Relief and Job Creation Act of 2012 (the “Spectrum Act”). The Spectrum Act includes several provisions to make more spectrum available for commercial use, including through auctions, and to improve public safety communications. Among other things, the Spectrum Act requires the Commission, by February 23, 2015, to allocate the 1915–1920 MHz band and the 1995–2000 MHz band (collectively, the H Block) for commercial use, and to auction and grant new initial licenses for the use of each spectrum band, subject to flexible-use service rules. Congress provided, however, that if the Commission determined that either of the bands
266. In this
267. The action is authorized pursuant to sections 1, 2, 4(i), 201, 301, 302, 303, 307, 308, 309, 310, 316, 319, 324, 332, 333, 1404, and 1451 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 201, 301, 302, 303, 307, 308, 309, 310, 316, 319, 324, 332, 333, 1404, and 1451.
268. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules and policies, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.
269.
270.
271. The projected reporting, recordkeeping, and other compliance requirements resulting from the
272. Any applicants for licenses of H Block will be required to file license applications using the Commission's automated Universal Licensing System
273. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
274. As set forth in this
275. This
276. The
277. The
278. None.
279.
280. In this present document, we have assessed the effects of the policies adopted in this
281. Accordingly, it is ordered, pursuant to sections 1, 2, 4(i), 201, 301, 302, 303, 307, 308, 309, 310, 316, 319, 324, 332, and 333 of the Communications Act of 1934, as amended, and sections 6003, 6004, and 6401 of the Middle Class Tax Relief Act of 2012, Public Law 112–96, 126 Stat. 156, 47 U.S.C. 151, 152, 154(i), 201, 301, 302(a), 303, 307, 308, 309, 310, 316, 319, 324, 332, 333, 1403, 1404, and 1451, that this Report and Order is hereby ordered.
282. Effective September 16, 2013 except for 47 CFR 1.2105(a)(2)(xii), 27.12, and 27.17, which contain information collection requirements that have not been approved by the Office of Management and Budget (OMB), Control Number 3060–1184. The Commission will publish a document in the
283. It is further ordered that the amendments, adopted above and specified in §§ 1.2105, 27.12, 27.14, and 27.17 of the Commission's rules, 47 CFR 1.2105, 27.12, 27.14, and 27.17, which contain new or modified information collection requirements that require approval by the Office of Management and Budget under the Paperwork Reduction Act, will become effective after the Commission publishes a notice in the
284. It is further ordered that the Final Regulatory Flexibility Analysis hereto is adopted.
285. It is further ordered that, pursuant to section 801(a)(1)(A) of the Congressional Review Act, 5 U.S.C. 801(a)(1)(A), the Commission shall send a copy of this
286. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this
Radio, Reporting and recordkeeping requirements.
Communications common carriers, Radio.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 1 and 27 as follows:
15 U.S.C. 79
(a) * * *
(2) * * *
(xii) For auctions required to be conducted under Title VI of the Middle Class Tax Relief and Job Creation Act of 2012 (Pub. L. 112–96), certification under penalty of perjury that the applicant and all of the person(s) disclosed under paragraph (a)(2)(ii) of this section are not person(s) who have been, for reasons of national security, barred by any agency of the Federal Government from bidding on a contract, participating in an auction, or receiving a grant. For the purposes of this certification, the term “person” means an individual, partnership, association, joint-stock company, trust, or corporation, and the term “reasons of national security” means matters relating to the national defense and foreign relations of the United States.
47 U.S.C. 154, 301, 302(a), 303, 307, 309, 332, 336, 337, 1403, 1404, and 1451 unless otherwise noted.
(b) * * *
(7) 1915–1920 MHz and 1995–2000 MHz.
(k)
(j)
(a) Except as provided in paragraph (b) and in §§ 27.604, 27.1201, and 27.1202, any entity other than those precluded by section 310 of the Communications Act of 1934, as amended, 47 U.S.C. 310, is eligible to hold a license under this part.
(b) A person described in 47 U.S.C. 1404(c) is ineligible to hold a license that is required by 47 U.S.C. Chapter 13 (Middle Class Tax Relief and Job Creation Act of 2012 (Pub. L. 112–96, 125 Stat. 156 (2012)) to be assigned by a system of competitive bidding under § 309(j) of the Communications Act, 47 U.S.C. 309(j).
(j)
(a) AWS and WCS licensees, with the exception of WCS licensees holding authorizations for Block A in the 698–
(f) Comparative renewal proceedings do not apply to WCS licensees holding authorizations for the 698–746 MHz, 747–762 MHz, and 777–792 MHz bands or licensees holding AWS authorizations for the 1915–1920 MHz and 1995–2000 MHz bands or the 2000–2020 MHz and 2180–2200 MHz bands. * * *
(k) Licensees holding WCS or AWS authorizations in the spectrum blocks enumerated in paragraphs (g), (h), (i), (q), or (r) of this section, including any licensee that obtained its license pursuant to the procedures set forth in paragraph (j) of this section, shall demonstrate compliance with performance requirements by filing a construction notification with the Commission, within 15 days of the expiration of the applicable benchmark, in accordance with the provisions set forth in § 1.946(d) of this chapter. * * *
(r) The following provisions apply to any licensee holding an AWS authorization in the 1915–1920 MHz and 1995–2000 MHz bands:
(1) A licensee shall provide signal coverage and offer service within four (4) years from the date of the initial license to at least forty (40) percent of the total population in each of its licensed areas (“Interim Buildout Requirement”).
(2) A licensee shall provide signal coverage and offer service within ten (10) years from the date of the initial license to at least seventy-five (75) percent of the population in each of its licensed areas (“Final Buildout Requirement”).
(3) If a licensee fails to establish that it meets the Interim Buildout Requirement for a particular licensed area, then the Final Buildout Requirement (in this paragraph (r)) and the license term (as set forth in § 27.13(j)) for each license area in which it fails to meet the Interim Buildout Requirement shall be accelerated by two years (from ten to eight years).
(4) If a licensee fails to establish that it meets the Final Buildout Requirement for a particular licensed areas, its authorization for each license area in which it fails to meet the Final Buildout Requirement shall terminate automatically without Commission action and the licensee will be ineligible to regain it if the Commission makes the license available at a later date.
(5) To demonstrate compliance with these performance requirements, licensees shall use the most recently available U.S. Census Data at the time of measurement and shall base their measurements of population served on areas no larger than the Census Tract level. The population within a specific Census Tract (or other acceptable identifier) will only be deemed served by the licensee if it provides signal coverage to and offers service within the specific Census Tract (or other acceptable identifier). To the extent the Census Tract (or other acceptable identifier) extends beyond the boundaries of a license area, a licensee with authorizations for such areas may only include the population within the Census Tract (or other acceptable identifier) towards meeting the performance requirement of a single, individual license.
(6) An applicant for renewal of a license covered by this paragraph (r) must make a renewal showing, independent of its performance requirements, as a condition of renewal. The showing must include a detailed description of the applicant's provision of service during the entire license period and address:
(i) The level and quality of service provided by the applicant (
(ii) The date service commenced, whether service was ever interrupted, and the duration of any interruption or outage;
(iii) The extent to which service is provided to rural areas;
(iv) The extent to which service is provided to qualifying tribal land as defined in § 1.2110(f)(3)(i) of this chapter; and
(v) Any other factors associated with the level of service to the public.
(d) * * *
(1) * * *
(i) Except for WCS licensees holding authorizations for Block A in the 698–704 MHz and 728–734 MHz bands, Block B in the 704–710 MHz and 734–740 MHz bands, Block E in the 722–728 MHz band, Blocks C, C1, or C2 in the 746–757 MHz and 776–787 MHz bands, or Block D in the 758–763 MHz and 788–793 MHz bands; and for licensees holding AWS authorizations in the 1915–1920 MHz and 1995–2000 MHz bands or the 2000–2020 MHz and 2180–2200 MHz bands; the following rules apply to WCS and AWS licensees holding authorizations for purposes of implementing the construction requirements set forth in § 27.14. Parties to partitioning agreements have two options for satisfying the construction requirements set forth in § 27.14. Under the first option, the partitioner and partitionee each certifies that it will independently satisfy the substantial service requirement for its respective partitioned area. If a licensee subsequently fails to meet its substantial service requirement, its license will be subject to automatic cancellation without further Commission action. Under the second option, the partitioner certifies that it has met or will meet the substantial service requirement for the entire, pre-partitioned geographic service area. If the partitioner subsequently fails to meet its substantial service requirement, only its license will be subject to automatic cancellation without further Commission action.
(iii) For licensees holding AWS authorizations in the 1915–1920 MHz and 1995–2000 MHz bands, or the 2000–2020 MHz and 2180–2200 MHz bands, the following rules apply for purposes of implementing the construction requirements set forth in § 27.14. Each party to a geographic partitioning must individually meet any service-specific performance requirements (i.e., construction and operation requirements). If a partitioner or partitionee fails to meet any service-specific performance requirements on or before the required date, then the consequences for this failure shall be those enumerated in § 27.14(q) for 2000–2020 MHz and 2180–2200 MHz licenses and those enumerated in § 27.14(r) for 1915–1920 MHz and 1995–2000 MHz licensees.
(2) * * *
(i) Except for WCS licensees holding authorizations for Block A in the 698–704 MHz and 728–734 MHz bands, Block B in the 704–710 MHz and 734–740 MHz bands, Block E in the 722–728 MHz band, Blocks C, C1, or C2 in the 746–757 MHz and 776–787 MHz bands, or Block D in the 758–763 MHz and 788–793 MHz bands; and for licensees holding AWS authorizations in the 1915–1920 MHz and 1995–2000 MHz bands or the 2000–2020 MHz and 2180–2200 MHz bands; the following rules apply to WCS and AWS licensees holding authorizations for purposes of implementing the construction requirements set forth in § 27.14. Parties to disaggregation agreements have two options for satisfying the construction requirements set forth in § 27.14. Under the first option, the disaggregator and disaggregatee each certifies that it will share responsibility for meeting the substantial service requirement for the geographic service area. If the parties choose this option and either party subsequently fails to satisfy its substantial service responsibility, both parties' licenses will be subject to forfeiture without further Commission action. Under the second option, both parties certify either that the disaggregator or the disaggregatee will meet the substantial service requirement for the geographic service area. If the parties choose this option, and the party responsible subsequently fails to meet the substantial service requirement, only that party's license will be subject to forfeiture without further Commission action.
(iii) For licensees holding AWS authorizations in the 1915–1920 MHz and 1995–2000 MHz bands or the 2000–2020 MHz and 2180–2200 MHz bands, the following rules apply for purposes of implementing the construction requirements set forth in § 27.14. Each party to a spectrum disaggregation must individually meet any service-specific performance requirements (i.e., construction and operation requirements). If a disaggregator or a disaggregatee fails to meet any service-specific performance requirements on or before the required date, then the consequences for this failure shall be those enumerated in § 27.14(q) for 2000–2020 MHz and 2180–2200 MHz licenses and those enumerated in § 27.14(r) for 1915–1920 MHz and 1995–2000 MHz licensees.
(a)
(b) For licensees with common carrier or non-common carrier regulatory status that hold AWS authorizations in the 1915–1920 MHz and 1995–2000 MHz bands or the 2000–2020 MHz and 2180–2200 MHz bands, permanent discontinuance of service is defined as 180 consecutive days during which a licensee does not provide service to at least one subscriber that is not affiliated with, controlled by, or related to the licensee. For licensees with private, internal regulatory status that hold AWS authorizations in the 1915–1920 MHz and 1995–2000 MHz bands or the 2000–2020 MHz and 2180–2200 MHz bands, permanent discontinuance of service is defined as 180 consecutive days during which a licensee does not operate.
(c)
(d) The following power and antenna height requirements apply to stations transmitting in the 1710–1755 MHz, 2110–2155 MHz, 2000–2020 MHz, 2180–2200 MHz, 1915–1920 MHz, and 1995–2000 MHz bands:
(1) The power of each fixed or base station transmitting in the 1995–2000 MHz, 2110–2155 MHz, or 2180–2200 MHz band and located in any county with population density of 100 or fewer persons per square mile, based upon the most recently available population statistics from the Bureau of the Census, is limited to:
* * *
(2) The power of each fixed or base station transmitting in the 1995–2000 MHz, the 2110–2155 MHz, or 2180–2200 MHz band and situated in any geographic location other than that described in paragraph (d)(1) of this section is limited to:
(9) Fixed, mobile and portable (hand-held) stations operating in the 1915–1920 MHz band are limited to 300 milliwatts EIRP.
(10) A licensee operating a base or fixed station in the 1995–2000 MHz band utilizing a power greater than 1640 watts EIRP and greater than 1640 watts/MHz EIRP must be coordinated in advance with all PCS G Block licensees authorized to operate on adjacent frequency blocks in the 1990–1995 MHz band within 120 kilometers of the base or fixed station operating in this band.
(h) * * *
(1)
(2) * * *
(iii) For operations in the 1915–1920 MHz band, the power of any emission between 1930–1995 MHz shall be attenuated below the transmitter power (P) in watts by at least 70 + 10 log
(iv) For operations in the 1995–2000 MHz band, the power of any emission between 2005–2020 MHz shall be attenuated below the transmitter power (P) in watts by at least 70 + 10 log
(a)* * *
(1) 1995–2000, 2110–2155, 2180–2200 MHz, 2305–2320, and 2345–2360 MHz bands: 47 dBμV/m.
(c) Operation in the 1710–1755 MHz, 2110–2155 MHz, 1915–1920 MHz, 1995–2000 MHz, 2000–2020 MHz, and 2180–2200 MHz bands is subject to international agreements with Mexico and Canada.
Mutually exclusive initial applications for 1915–1920 MHz and 1995–2000 MHz band licenses are subject to competitive bidding. The general competitive bidding procedures set forth in 47 CFR part 1, subpart Q will apply unless otherwise provided in this subpart.
Eligibility for small business provisions:
(a)(1) A small business is an entity that, together with its affiliates, its controlling interests, the affiliates of its controlling interests, and the entities with which it has an attributable material relationship, has average gross revenues not exceeding $40 million for the preceding three years.
(2) A very small business is an entity that, together with its affiliates, its controlling interests, the affiliates of its controlling interests, and the entities with which it has an attributable material relationship, has average gross revenues not exceeding $15 million for the preceding three years.
(b)
A licensee in the 1915–1920 MHz band (Lower H Block) shall, within 30 days of grant of its long-form application, reimburse 25 percent of the total relocation costs incurred by UTAM, Inc. for relocating and clearing incumbent Fixed Microwave Service (FS) licensees from the 1910–1930 MHz band on a
(a)(1) If Lower H Block licenses granted as a result of the first auction for this spectrum cover, collectively, at least forty (40) percent of the nation's population, the amount owed to UTAM, Inc. by each individual Lower H Block licensee (reimbursement amount owed or RN) will be determined by dividing the gross winning bid (GWB) for each individual Lower H Block license (
(2) Except as provided in paragraphs (b) and (c) of this section, a licensee that obtains a license for a market in which no license is granted as a result of the first Lower H Block auction will not have a reimbursement obligation to UTAM, Inc.
(b) If Lower H Block licenses granted as a result of the first auction for this spectrum cover, collectively, less than forty (40) percent of the nation's population, then the pro rata amount that the licensee of an individual Lower H Block license must reimburse UTAM, Inc. shall be calculated by dividing the population of the individual EA by the total U.S. population, and then multiplying by $12,629,857. In this event, the same population data, e.g., 2010, used to calculate the RNs for Lower H Block licenses granted as a result of the first auction will apply to subsequent auctions of Lower H Block licenses that were not granted as a result of an earlier auction of Lower H Block licenses.
(c) A winning bidder of a Lower H Block license that is not granted a license for any reason will be deemed to have triggered a reimbursement obligation to UTAM, Inc. This obligation will be owed to UTAM, Inc. by the licensee acquiring the Lower H Block license through a subsequent auction. The amount owed by the licensee acquiring the Lower H Block license at such auction will be the RN calculated for the EA license based on the first auction (calculated under paragraphs (a) or (b), as applicable, of this section).
(d) For purposes of compliance with this section, licensees should determine population based on 2010 U.S. Census Data or such other data or measurements that the Wireless Telecommunications Bureau proposes and adopts under the notice and comment process for the auction procedures.
(e) A payment obligation owed by a Lower H Block licensees under this section shall be made within thirty (30) days of the grant of the license (
A licensee in the 1995–2000 MHz band (Upper H Block) shall, within 30 days of grant of its long-form application, reimburse one-seventh of the eligible expenses incurred by Sprint Nextel, Inc. (Sprint) for relocating and clearing Broadcast Auxiliary Service (BAS), Cable Television Relay Service (CARS), and Local Television Transmission Service (LTTS) incumbents from the 1990–2025 MHz band, on a
(a)(1) If Upper H Block licenses granted as a result of the first auction for this spectrum cover, collectively, at least forty (40) percent of the nation's population, the amount owed to Sprint by the winning bidder of each individual Upper H Block license granted as a result of the first auction will be determined by dividing the gross winning bid (GWB) for each individual Upper H Block license (
(2) Except as provided in paragraphs (b) and (c) of this section, a licensee that obtains a license for a market in which no license was granted as a result of the first Upper H Block auction will not have a reimbursement obligation to Sprint.
(b) If Upper H Block licenses granted as a result of the first auction for this spectrum cover, collectively, less than forty (40) percent of the nation's population, then the amount that the licensee of an individual Upper H Block license must reimburse Sprint shall be calculated by dividing the population of the individual EA by the total U.S. population, and then multiplying by $94,875,516. In this event, the same population data, e.g., 2010, used to calculate the RNs for Upper H Block licenses granted as a result of the first auction will apply to subsequent auctions of Upper H Block licenses that were not granted as a result of an earlier auction of Upper H Block licenses.
(c) A winning bidder of an Upper H Block license that is not granted a license for any reason will be deemed to have triggered a reimbursement obligation to Sprint. This obligation will be owed to Sprint by the licensee acquiring the Upper H Block license through a subsequent auction. The amount owed by the licensee acquiring the EA license at such auction will be based on the RN calculated for the EA license based on the first auction (calculated under paragraphs (a) or (b), as applicable, of this section).
(d) For purposes of compliance with this section, licensees should determine population based on 2010 U.S. Census Data or such other data or measurements that the Wireless Telecommunications Bureau proposes and adopts under the notice and comment process for the auction procedures.
(e) A payment obligation owed by a Upper H Block licensees under this section shall be made within thirty (30) days of the grant of the license (i.e., grant of the long form application).
(a) The cost-sharing obligation adopted in this subpart for the Lower H Block and for the Upper H Block will sunset ten years after the first license is issued in the respective band.
(b) A Lower H Block licensee and an Upper H Block licensee must satisfy in full its payment obligations under this subpart K within thirty days of the grant of its long-form application. The failure to timely satisfy a payment obligation in full prior to the applicable sunset date will not terminate the debt owed or a party's right to collect the debt.
Commodity Futures Trading Commission.
Notice of proposed rulemaking.
The Commodity Futures Trading Commission (“Commission”) is proposing amendments to its regulations to establish additional standards for compliance with the derivatives clearing organization (“DCO”) core principles set forth in Section 5b(c)(2) of the Commodity Exchange Act (“CEA”) for systemically important DCOs (“SIDCOs”) and DCOs that elect to opt-in to the SIDCO regulatory requirements (“Subpart C DCOs”). SIDCOs and Subpart C DCOs would be required to comply with the requirements applicable to all DCOs, which are set forth in the Commission's DCO regulations on compliance with core principles, to the extent those requirements are not inconsistent with the requirements of the regulations in this proposed rule. The proposed amendments include: Procedural requirements for opting in to the regulatory regime as well as substantive requirements relating to governance, financial resources, system safeguards, special default rules and procedures for uncovered losses or shortfalls, risk management, additional disclosure requirements, efficiency, and recovery and wind-down procedures. These additional requirements would also be consistent with the Principles for Financial Market Infrastructures (“PFMIs”) published by the Committee on Payment and Settlement Systems and the Board of the International Organization of Securities Commissions (“CPSS–IOSCO”). In addition, the Commission is proposing certain delegation provisions and certain technical clarifications.
Submit comments on or before September 16, 2013.
You may submit comments, identified by RIN number 3038–AE06, by any of the following methods:
• Agency Web site:
• Mail: Secretary of the Commission, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581.
• Hand Delivery/Courier: Same as Mail, above.
• Federal eRulemaking Portal:
All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
The Commission reserves the right but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from
All submissions that have been redacted or removed that contain comments on the merits of the rulemaking will be retained in the public comment file and will be considered as required under the Administrative Procedure Act and other applicable laws, and may be accessible under the Freedom of Information Act.
Ananda Radhakrishnan, Director, Division of Clearing and Risk (“DCR”), at 202–418–5188 or
On July 21, 2010, President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”).
Section 725(c) of the Dodd-Frank Act amended Section 5b(c)(2) of the CEA, which sets forth core principles that a DCO must comply with in order to register and maintain registration with the Commission. The core principles were originally added to the CEA by the Commodity Futures Modernization Act of 2000,
Title VIII of the Dodd-Frank Act, entitled “Payment, Clearing, and Settlement Supervision Act of 2010,”
In determining whether an FMU is systemically important, the Council uses a detailed two-stage designations process, using certain statutory considerations
Section 805 of the Dodd-Frank Act directs the Commission to consider relevant international standards and existing prudential requirements when prescribing risk management standards governing the operations related to payment, clearing, and settlement activities for FMUs that are (1) designated as systemically important by the Council and (2) engaged in activities for which the Commission is the Supervisory Agency.
(a) In order to promote effective and consistent global regulation of swaps and security based swaps, the [CFTC], the Securities and Exchange Commission, and the prudential regulators (as that term is defined in section 1a(30) of the [CEA], as appropriate, shall consult and coordinate with foreign regulatory authorities on the establishment of international standards with respect to the regulation * * * of swaps * * * [and] swap entities * * *.
(b) In order to promote effective and consistent global regulation of contracts of sale of a commodity for future delivery and options on such contracts, the [CFTC] shall consult and coordinate with foreign regulatory authorities on the establishment of international standards with respect to the regulation of contracts of a sale of a commodity for future delivery and on options on such contracts.
The Commission has previously reviewed the risk management
Because efforts to finalize the PFMIs were ongoing at the time the Commission adopted certain amendments to part 39 applicable to DCOs, rules specific to SIDCOs could have put SIDCOs at a competitive disadvantage vis-à-vis foreign central counterparties (“CCPs”) not yet subject to comparable rules. Moreover, at the time, because no DCO had been designated as systemically important by the Council, the Commission concluded it would be premature to finalize the SIDCO regulations in the Derivatives Clearing Organization General Provisions and Core Principles adopting release.
As noted above, in order to register and maintain registration status with the Commission, DCOs must comply with all of the DCO core principles set forth in Section 5b(c)(2) of the CEA, as amended by Section 725 of the Dodd-Frank Act, as well as all applicable Commission regulations. However, for purposes of this proposal, the Commission would like to highlight the following requirements set forth in the core principles and related Commission regulations: Core Principle B (Financial Resources) and regulations 39.11 and 39.29; Core Principle D (Risk Management) and regulation 39.13; Core Principle G (Default Rules and Procedures) and regulation 39.16; Core Principle I (System Safeguards) and regulations 39.18 and 39.30; Core Principle L (Public Information) and regulation 39.21; Core Principle O (Governance Fitness Standards); Core Principle P (Conflicts of Interest); and Core Principle Q (Composition of Governing Boards).
Core Principle B requires DCOs to have “adequate financial, operational, and managerial resources, as determined by the Commission, to discharge each responsibility of the [DCO].”
Core Principle D requires a DCO to ensure that it possesses the ability to manage the risks associated with discharging the responsibilities of the DCO through the use of appropriate tools and procedures. It further requires a DCO to measure its credit exposures to each clearing member not less than once each business day and to monitor each such exposure periodically during the business day. Core Principle D also requires a DCO to limit its exposure to potential losses from defaults by clearing members through margin requirements and other risk control mechanisms, to ensure that the DCO's operations would not be disrupted and non-defaulting clearing members would not be exposed to losses that non-defaulting clearing members cannot anticipate or control. Finally, Core Principle D provides that a DCO must require margin from each clearing member sufficient to cover potential exposures in normal market conditions and that each model and parameter used in setting such margin requirements must be risk-based and reviewed on a regular basis. Regulation 39.13
Core Principle G requires a DCO to have rules and procedures designed to allow for the efficient, fair, and safe management of events during which clearing members become insolvent or otherwise default on their obligations to the DCO. In addition, Core Principle G requires a DCO to clearly state its default procedures, make its default rules publicly available, and ensure that it may take timely action to contain losses and liquidity pressures and to continue meeting its obligations. Regulation 39.16 establishes the minimum requirements that a DCO must meet in order to comply with Core Principle G, including the requirements for the DCO's default management plan and the procedures for dealing with the default and insolvency of a clearing member.
Core Principle I requires a DCO to establish and maintain a program of risk analysis and oversight that identifies and minimizes sources of operational risk through the development of appropriate controls and procedures, and automated systems that are reliable, secure, and have adequate scalable capacity. Core Principle I also requires that the emergency procedures, back-up facilities, and disaster recovery plans that a DCO is obligated to establish and maintain specifically allow for the timely recovery and resumption of the DCO's operations and the fulfillment of each obligation and responsibility of the DCO. Finally, Core Principle I requires that a DCO periodically conduct tests to verify that the DCO's back-up resources are sufficient to ensure daily processing, clearing, and settlement. Regulation 39.18 delineates the minimum requirements that a DCO must satisfy in order to comply with Core Principle I, including a recovery time objective of the next business day. In addition, regulation 39.30 requires a SIDCO to have a business continuity and disaster recovery plan with a recovery time objective of not later than two hours following the disruption. Regulation 39.30 also requires a SIDCO to have geographic diversity in the resources used to enable the SIDCO to meet its recovery time objective.
Core Principle L requires a DCO to provide market participants sufficient information to enable the market participants to identify and evaluate accurately the risks and costs associated with using the DCO's services. More specifically, a DCO is required to make available to market participants information concerning the rules and operating and default procedures governing its clearing and settlement systems and also to disclose publicly and to the Commission the terms and conditions of each contract, agreement, and transaction cleared and settled by the DCO; each clearing and other fee charged to members; the DCO's margin-setting methodology; daily settlement prices; and other matters relevant to participation in the DCO's clearing and settlement activities. Regulation 39.21 sets forth the requirements a DCO must meet in order to comply with Core Principle L and details the information to be disclosed to the public and requirements regarding the method and timing of such disclosure.
Core Principle O requires a DCO to establish transparent governing arrangements to both fulfill public interest requirements and to permit the consideration of the views of owners and participants. In addition, Core Principle O requires a DCO to establish and enforce appropriate fitness standards for directors, members of any disciplinary committee, members of the DCO, any other individual or entity with direct access to the settlement or clearing activities of the DCO, and affiliated parties.
Core Principle P requires a DCO to establish and enforce rules to minimize conflicts of interest in the decision making process of the DCO. Core Principle P further requires a DCO to establish a process for resolving conflicts of interest.
Core Principle Q requires a DCO to ensure that the composition of the governing board or committee of the DCO includes market participants.
In the SIDCO Final Rule, the Commission determined that, for purposes of meeting its obligation pursuant to Section 805(a)(2)(A) of the Dodd-Frank Act, the PFMIs, which were developed by CPSS–IOSCO over a period of several years,
In February 2010, CPSS–IOSCO launched a review of the existing sets of international standards for financial market infrastructures (“FMIs”) in support of a broader effort by the Financial Stability Board (“FSB”)
The PFMIs set out 24 principles which address the risk and efficiency of an FMI's operations.
Principle 2 addresses the governance arrangements of an FMI.
Principle 3 addresses an FMI's risk management framework, requiring it to “comprehensively manag[e] legal, credit, liquidity, operational, and other risks.”
Principle 4 addresses an FMI's credit risk, that is, the risk that a counterparty to the CCP will be unable to fully meet its financial obligations when due.
Principle 6 addresses an FMI's margin requirements and requires a CCP to use “an effective margin system that is risk-based and regularly reviewed” to “cover its credit exposures to its participants for all products.”
Principle 7 addresses the risk that an FMI may not have sufficient funds to meet its financial obligations as and when due.
Principle 9 addresses money settlements, stating that an FMI should minimize and strictly control the credit and liquidity risk arising from the use of commercial bank money.
Principle 14 addresses segregation and portability, stating that “a CCP should have rules and procedures that enable the segregation and portability of a participant's customers and the collateral provided to the CCP with respect to those positions.”
Principle 15 addresses general business risk, the inability of an FMI to continue as a going concern, requiring an FMI to “hold sufficient liquid net assets funded by equity to cover potential general business losses.”
Principle 16 addresses custody and investment risks, stating that an FMI should safeguard its own assets as well as the assets of its participants.
Principle 17 addresses the risk of deficiencies in information systems or internal processes, human errors, management failures, or disruptions from external events that will result in the reduction or deterioration of services provided by the FMI.
Principle 21 addresses the efficiency and effectiveness of an FMI. An FMI should be designed to meet the needs of its participants and the markets it serves, in particular, with regard to choice of clearing and settlement arrangement, operating structure, scope of products cleared or settled and integration of technology and procedures.
Principle 22 addresses communication procedures and standards. An FMI should use, or at a minimum accommodate, internationally accepted communication procedures and standards.
Principle 23 addresses the disclosure of an FMI's rules and procedures to participants and the public. An FMI should disclose its rules and procedures to participants, so that participants can have an “accurate understanding of the risks, fees, and other material costs they incur by participating in the FMI.”
The Commission notes that where a CCP is not prudentially supervised in a jurisdiction that has domestic rules and regulations that are consistent with the standards set forth in the PFMIs, the implementation of certain international banking regulations will have significant cost implications for that CCP and its market participants.
In July of 2012, the BCBS,
Default fund exposure is a measure of the loss a bank acting as a clearing member is exposed to arising from the use of its contributions to the CCP's mutualized default fund resources.
The capital charges for trade exposure are based upon a function multiplying exposure by risk weight. Risk weight is a measure that represents the likelihood that the loss to which the bank is exposed will be incurred, and the extent of that loss. The risk weight assigned under the Basel CCP Capital Requirements varies significantly depending on whether or not the counterparty is a qualified CCP (“QCCP”).
However, in certain circumstances risk weight may increase. Specifically, if condition 1 is not met (
With respect to default fund exposure, whenever a clearing member bank is required to maintain capital for exposures arising from default fund contributions to a QCCP, the clearing member bank may apply one of two methodologies for determining the capital requirement: The risk-sensitive approach, or the 1250% risk weight approach.
Thus, the Basel CCP Capital Requirements provide incentives for banks, including their subsidiaries and affiliates, to clear derivatives through CCPs that are QCCPs by setting (1) lower capital charges for OTC derivatives transacted through a QCCP and (2) significantly higher capital charges for OTC derivatives transacted through non-qualifying CCPs. The increased capital charges for transactions through non-qualifying CCPs may have significant business and operational implications for U.S. DCOs that operate internationally and are not QCCPs. Specifically, banks faced with such higher capital charges may transfer their OTC derivatives business away from such DCOs to a QCCP in order to benefit from the preferential capital charges provided by Basel CCP Capital Requirements. Alternatively, banks may reduce or discontinue their OTC business altogether. Banks may also pass through the higher costs of transacting on a non-qualifying DCO that result from the higher capital charges to their customers. Accordingly, customers using such banks as intermediaries may transfer their business to an intermediary at a QCCP. In short, a DCO's failure to be a QCCP may cause it to face a competitive disadvantage retaining members and customers.
As described in detail in section II below, this proposed rulemaking would create a new category of DCO, a Subpart C DCO. A Subpart C DCO would include any registered DCO that elects to become subject to the provisions in Subpart C of part 39 of the Commission's regulations (“Subpart C”). Further, this rulemaking would revise Subpart C so that Subpart C would apply to SIDCOs and Subpart C DCOs, and would include new or revised standards for governance, financial resources, system safeguards, default rules and procedures for uncovered losses or shortfalls, risk management, disclosure, efficiency, and recovery and wind-down procedures. These requirements would address any remaining gaps between the Commission's regulations and the PFMI standards. Thus, Subpart C, together with the provisions in Subpart A and Subpart B, would establish domestic rules and regulations that are consistent with the PFMIs. As such, because SIDCOs and Subpart C DCOs would have the requirements of Subpart A, Subpart B, and Subpart C applied to them on a continuing basis, SIDCOs and Subpart C DCOs would be QCCPs for purposes of the Basel CCP Capital Requirements.
The Commission proposes to amend regulation 39.2 by amending one definition and adding six definitions. First, the Commission proposes a technical amendment to the definition of “systemically important derivatives clearing organization.” The definition now describes a SIDCO as a registered DCO “which has been designated by the [Council] to be systemically important . . . .” The proposed definition would describe a SIDCO as a registered DCO “which is currently designated . . . ” This revision is necessary to allow for the possibility that a systemic importance designation may be rescinded.
Second, the Commission proposes to add a definition for the phrase “activity with a more complex risk profile,” to provide greater clarity as to the types of activities that would trigger a Cover Two financial resources requirement. The Commission proposes to define “activity with a more complex risk profile” to include clearing credit default swaps, credit default futures, and derivatives that reference either credit default swaps or credit default futures, as well as any other activity designated as such by the Commission. By permitting activities to be added by Commission action, the proposed definition provides the Commission with flexibility to address new and innovative market activities. The phrase “activity with a more complex risk profile” appears in regulation 39.29 (Financial resources requirements), which this rulemaking proposes to revise and renumber as regulation 39.33. The phrase also appears in PFMI Principles 4 (Credit risk) and 7 (Liquidity risk).
The Commission also proposes to add a definition for the term “subpart C
In addition, the Commission proposes to add definitions for “depository institution,” “U.S. branch and agency of a foreign banking organization,” and “trust company.” A “depository institution” would have the meaning set forth in Section 19(b)(1)(A) of the Federal Reserve Act (12 U.S.C. 461(b)(1)(A)). A “U.S. branch and agency of a foreign banking organization” would mean the U.S. branch and agency of a foreign banking organization as defined in Section 1(b) of the International Banking Act of 1978 (12 U.S.C. 3101). A “trust company” would mean a trust company that is a member of the Federal Reserve System, under Section 1 of the Federal Reserve Act (12 U.S.C. 221), but that does not meet the definition of “depository institution.”
The Commission requests comment on these definitions. In particular, the Commission requests comment on the potential costs and benefits resulting from or arising out of the proposed definition of “activity with a more complex risk profile.” The Commission requests that, where possible, commenters provide both quantitative data and detailed analysis in their comments, particularly with respect to estimates of costs and benefits. In addition, the Commission requests comment on whether there are alternative definitions that would provide a more effective or efficient means for achieving consistency with the standards set forth by the PFMIs. The Commission requests that commenters include a detailed description of any such alternatives, and estimates of the costs and benefits of such alternatives.
The Commission proposes to expand regulation 39.28 (and renumber it as regulation 39.30) so that Subpart C would apply to SIDCOs and Subpart C DCOs. As described above, the rules proposed in Subpart C address the gaps between Commission regulations and the standards set forth in the PFMIs.
With respect to SIDCOs, the Commission is committed to maintaining risk management standards that enhance the safety and efficiency of a SIDCO, reduce systemic risks, foster transparency and support the stability of the broader financial system.
In Asia, Singapore has adopted the PFMIs into its financial regulations pertaining to FMIs.
In addition, Australia and Canada have publicly indicated their intent to adopt the PFMIs.
In the United States, the SEC adopted a final rule that incorporates heightened risk management standards for CCPs that clear security-based swaps, based on, in part, the PFMIs' “Cover Two” standard for CCPs engaged in a more complex risk profile or that are systemically important in multiple jurisdictions.
The Commission requests comment on the proposed rules. Specifically, and in light of the potential impact that a SIDCO's failure could have on the U.S. financial system, the Commission requests comment on the potential costs and benefits resulting from, or arising out of, requiring SIDCOs to comply with Subpart C. The Commission requests that, where possible, commenters provide quantitative data and detailed analysis in their comments, particularly with respect to estimates of costs and benefits. In addition, the Commission requests comment on whether there are more effective or efficient means for achieving consistency with the standards set forth by the PFMIs. The Commission requests that commenters include a detailed description of any such alternatives, and estimates of the costs and benefits of such alternatives.
As discussed above,
The proposed amendments to Subpart C are intended to enhance the financial integrity and operational security of a SIDCO, which is critically important to safeguarding the stability of the U.S. financial system. Accordingly, the Commission proposes that a SIDCO should be subject to all of the requirements set forth in Subpart C. The Commission recognizes, however, that the overall balance of the costs and benefits of this enhanced regulatory regime, including the benefits accruing from QCCP status, and the costs associated with the implementation of Subpart C, may vary among DCOs that are not SIDCOs. The proposed “opt-in” regime allows DCOs that are not designated by the Council as systemically important to weigh for themselves the costs and benefits of attaining QCCP status.
The authority provided by Sections 5b(c)(2)(A) and 8a(5) of the CEA permits the Commission to establish and enforce regulations applicable to specified categories of DCOs that affirmatively elect to become subject to such regulations. Indeed, the Commission notes that it applies, and maintains the authority to enforce, regulations to persons and entities that voluntarily register in certain capacities.
Authority for proposed regulation 39.31 is also supported by Section 752 of the Dodd- Frank Act,
The mandate of Section 15 of the CEA further supports the adoption of a flexible approach, permitting some non-SIDCOs, but not all DCOs, to be subject to the additional regulations of Subpart C. As discussed below in more detail, the Commission is required by Section 15(a)(1) to consider the costs and benefits of any proposed regulation prior to promulgating it.
The Commission emphasizes however, that, under the present proposal, once a non-SIDCO elects to become subject to Subpart C, that non-SIDCO would, as of the effective date of the election, be subject to examination for compliance with Subpart C and to enforcement action for non-compliance. This status would continue until such time, if any, as the election is properly vacated as set forth in proposed regulation 39.31(e).
Proposed regulation 39.31(a) sets forth the two categories of entities that would be eligible to elect to become subject to the provisions in Subpart C. A DCO that is not a SIDCO could request such election using the procedures set forth in proposed regulation 39.31(b). An entity applying for registration as a DCO pursuant to regulation 39.3 (“DCO Applicant”) could request the election in conjunction with its application for registration (“Registration Application”) using the procedures set forth in proposed regulation 39.31(c).
Proposed regulation 39.31(b) would establish the procedures by which a DCO that is already registered could elect to become subject to the provisions of Subpart C and the procedure by which it could withdraw that election. These procedures are intended to provide the Commission, clearing members, and customers (and regulators of such clearing members and customers) with assurance that the electing DCO will be held to and will be required to meet the standards set forth in Subpart C and in the PFMIs.
A DCO seeking to become subject to Subpart C would be required to file with the Commission a completed Subpart C Election Form, which is proposed to be included in part 39 of the Commission's regulations as Appendix B thereto. The proposed Subpart C Election Form would include three parts: (1) General Instructions, (2) Elections and Certifications, and (3) Disclosures and Exhibits. As discussed below, a DCO Applicant requesting an election to become subject to Subpart C also would be required to file a Subpart C Election Form with the Commission.
In the Elections and Certifications portion of the Subpart C Election Form, a DCO would be required to affirmatively elect to become subject to Subpart C and to specify the date upon which it seeks to make its election effective. The effective date selected by the DCO could be no earlier than ten business days after the date the Subpart C Election Form is filed with the
In the Disclosures and Exhibits portion of the Subpart C Election Form, a DCO would be required to provide a regulatory compliance chart that separately sets forth for proposed Subpart C regulations 39.32 through 39.39, citations to the relevant rules, policies and procedures of the DCO that address each such regulation and a summary of the manner in which the DCO will comply with each regulation. In addition, the DCO would be required to provide, in separate exhibits, any documents that demonstrate its compliance with proposed Subpart C regulations 39.32 through 39.36 and 39.39.
Pursuant to proposed regulation 39.31(b)(2), the filing of a Subpart C Election Form would not create a presumption that the Subpart C Election Form is materially complete or that supplemental information would not be required. The Commission could, prior to the effective date, request that the DCO provide supplemental information in order to process the DCO's Subpart C Election Form and the DCO would be required to file such supplemental information with the Commission. Proposed regulation 39.31(b)(3) also would require the DCO to promptly amend its Subpart C Election Form if it discovers a material omission or error in, or if there is a material change in, the information provided to the Commission in the Subpart C Election Form or other information provided in connection with the Subpart C Election Form.
Once a Subpart C Election Form is filed by a DCO, the Commission may permit the DCO's election to become subject to Subpart C to take effect as set forth in proposed regulation 39.31(b)(4) or may stay or deny the election under proposed regulation 39.31(b)(5). If the Commission stays or denies the election, it would issue written notification thereof to the DCO. Proposed regulation 39.31(b)(4) would provide that, unless the Commission stays or denies the DCO's election to become subject to Subpart C, such election would become effective upon the later of: (1)(i) The effective date specified by the DCO in its Subpart C Election Form or (ii) ten business days after the DCO files its Subpart C Election Form with the Commission or (2) or upon the effective date set forth in written notification from the Commission that it shall permit the election to take effect after a stay issued pursuant to proposed regulation 39.31(b)(5). The Commission may provide written acknowledgement of receipt of the DCO's Subpart C Election Form, as well as written acknowledgement that it has permitted the DCO's election to become subject to Subpart C to take effect and the effective date of that election.
Proposed regulation 39.31(b)(7) would allow a DCO that has submitted a Subpart C Election Form to withdraw the form at any time prior to the effective date specified therein by filing a notice thereof with the Commission. Withdrawal, however, would not be permitted on or after the specified effective date. A DCO that wishes to rescind its election to become subject to
Proposed regulation 39.31(c) sets forth procedures through which a DCO Applicant may request to become subject to the provisions of Subpart C at the time that the DCO Applicant files its Registration Application. These procedures are intended to provide the Commission with a basis to evaluate the DCO Applicant's ability to comply with the provisions of Subpart C, and ultimately to provide the Commission, potential members and customers (and regulators of such members and customers) with assurance that the DCO Applicant will, once DCO registration has been granted, be held to and will, in fact, meet the standards set forth in Subpart C and in the PFMIs.
The Commission encourages DCO Applicants to make their election to become subject to Subpart C at the time that their Registration Application is filed. The Commission anticipates considerable overlap between the information and documentation contained in a Registration Application filed by a DCO Applicant and the information and documentation that would be required to be submitted to the Commission as part of a Subpart C Election Form. It would appear that simultaneous filings would allow Commission resources to be used more efficiently and effectively.
As proposed, a DCO Applicant requesting an election to become subject to Subpart C would make such request by attaching a Subpart C Election Form to the Form DCO that the DCO Applicant files pursuant to regulation 39.31. The certifications, disclosures, and exhibits that would be required to be provided by a DCO Applicant in the Subpart C Election Form would be the same as those required of registered DCOs,
As with Subpart C Election Forms filed by registered DCOs, the filing of a Subpart C Election Form by a DCO Applicant would not create a presumption that the Subpart C Election Form is materially complete or that supplemental information would not be required. Under proposed regulation 39.31(c)(3), the Commission could, at any time during the Commission's review of the Subpart C Election Form, request that the DCO Applicant submit supplemental information in order for the Commission to process the DCO Applicant's Subpart C Election Form or its Registration Application and the DCO Applicant would be required to file such supplemental information. In addition, the DCO Applicant would be required by proposed regulation 39.31(c)(4) to promptly amend its Subpart C Election Form if it discovers a material omission or error in, or if there is a material change in, the information provided to the Commission in the Subpart C Election Form or other information provided in connection with the Subpart C Election Form.
Under proposed regulation 39.31(c)(2), the Commission would review the Subpart C Election Form as part of the Commission's review of the DCO Applicant's Registration Application and the Commission, based upon its review and analysis of the information submitted in the Subpart C Election Form, could permit the DCO Applicant's election to take effect at the time it approves the Registration Application. The Commission would provide the DCO Applicant written notice of its determination to permit the election to become subject to Subpart C to become effective.
Proposed regulation 39.31(c)(5) would permit a DCO Applicant to withdraw a request to become subject to Subpart C by filing with the Commission a notice of the withdrawal. The DCO Applicant could withdraw its Subpart C Election Form without withdrawing its Form DCO.
Proposed regulation 39.31(d) would provide that certain portions of the Subpart C Election Form will be considered public documents that may routinely be made available for public inspection. Such portions include: The Elections and Certifications and Disclosures in the Subpart C Election Form, the rules of the DCO, the regulatory compliance chart, and any other part of the Subpart C Election Form that is not covered by a request for confidential treatment subject to regulation 145.9. This proposal is consistent with the transparent treatment typically afforded materials submitted in connection with applications to become registered with the Commission.
Proposed 39.31(e) would permit a Subpart C DCO to rescind its election to comply with Subpart C by filing a notice of its intent to rescind the election with the Commission. The Commission proposes that DCOs that “opt-in” to Subpart C should be permitted to rescind, subject to certain conditions. These conditions are intended to provide the DCO's members and
As proposed, the rescission of a DCO's election to become subject to Subpart C would become effective on the date specified by the Subpart C DCO in its notice of intent to rescind the Subpart C election, except that the rescission could not become effective any earlier than 90 days after the date the notice of intent to rescind is filed with the Commission. This proposed 90-day period is necessary to provide banks and other entities that wish to limit their cleared transactions to clearing solely through a QCCP (
Proposed regulation 39.31(e)(3)(i) would require a Subpart C DCO that files a notice of intent to rescind to provide periodic notices to each of its clearing members, and to have rules in place requiring each of its clearing members to provide such notices to each of the clearing member's customers. Specifically, a Subpart C DCO would be required to issue the following notices to its clearing members: (1) No later than the filing with the Commission of the notice of its intent to rescind its election to be subject to Subpart C, written notice that the Subpart C DCO intends to file such notice and the date that the rescission is intended to take effect, and (2) on the effective date of the rescission of its election to be subject to Subpart C, written notice that the rescission has become effective. These notices appear necessary to ensure that the Subpart C DCO's clearing members and customers are afforded sufficient time to consider and react to the implications of the Subpart C DCO's rescission of its election to be subject to Subpart C.
Proposed regulation 39.31(e)(3)(ii) would also require a Subpart C DCO to: (1) No later than the date it files a notice of its intent to rescind its election to be subject to Subpart C, provide notice to the general public of its intent to rescind such election; (2) on the effective date of the rescission of its election to be subject to Subpart C, provide written notice to the general public that the rescission has become effective; and (3) remove all references to its Subpart C DCO (and QCCP) status on its Web site and in all other materials that it provides to its clearing members and customers, other market participants, or members of the public. As discussed herein, because of the potential capital impact of transacting through a clearinghouse that is not a QCCP, these public notices would appear necessary to ensure that market participants are afforded sufficient time to consider and react to a Subpart C DCO's rescission of its election to be subject to Subpart C. However, the Commission proposes that the notices to the general public required by this subsection may be accomplished through publication on the Subpart C DCO's Web site.
In addition, the employees and representatives of the Subpart C DCO would be prohibited by proposed regulation 39.31(e)(3)(iii) from making any reference to the organization as a Subpart C DCO (or QCCP) on and after the date that the notice of its intent to rescind its election to become subject to Subpart C is filed. Because the QCCP recognition that accompanies Subpart C DCO status provides significant benefits to those transacting through a Subpart C DCO, it would be inappropriate and misleading to permit a DCO to hold itself out as a Subpart C DCO (or QCCP) once it has filed a notice of intention to rescind that status, even though the rescission is not immediately effective.
Proposed regulation 39.31(e)(4) provides that the rescission of a DCO's election to be subject to Subpart C would not affect the authority of the Commission concerning any activities or events occurring during the time that the DCO maintained its status as a Subpart C DCO. That is, the Subpart C DCO is continually obligated to, and would be subject to enforcement action for failure to, comply with the Subpart C provisions during the time that it was subject to Subpart C and maintained its Subpart C DCO status.
Proposed regulation 39.31(f) would provide that a SIDCO that is registered with the Commission, but whose designation of systemic importance is rescinded by the Council, shall immediately be deemed to be a Subpart C DCO. Such Subpart C DCO would be subject to the Subpart C provisions unless and until it elects to rescind its status as a Subpart C DCO.
The Commission requests comment on all aspects of proposed regulation 39.31 including, without limitation, the following:
(1) All aspects of the proposed Subpart C election eligibility requirements including, without limitation, the appropriateness of permitting DCO Applicants to request to become subject to Subpart C at the time of filing their Registration Applications. If DCO Applicants should not be permitted to request to become subject to Subpart C at the time of filing their Registration Applications, what would be the basis for such prohibition and what would be a suitable waiting period after registration with the Commission for making a Subpart C Election Form filing?
(2) All aspects of the proposed Subpart C Election Form including, without limitation, the following:
(a) The elections and certifications contained therein and the disclosures and exhibits required;
(b) whether DCOs and DCO Applicants should be permitted to amend or supplement their Subpart C Election Form; and
(c) possible incentives to encourage DCOs and DCO Applicants to file Subpart C Election Forms that are accurate and complete at the time of filing, in order to avoid amendments, supplements and withdrawals.
(3) Whether the Commission should require the Subpart C Election Form certifications to be made under penalty of perjury.
(4) All aspects of the proposed election and withdrawal procedures applicable to DCOs including, without limitation, the following:
(a) The appropriateness of permitting a DCO to designate the effective date of its status as a Subpart C DCO that is subject to the provisions of Subpart C;
(b) The appropriateness of the ten-business-day waiting period prior to a DCO's status as a Subpart C DCO becoming effective, any suggested alternative time frame, and the reasons why such alternatives would be preferable; and
(c) The circumstances under which it would be appropriate for the Commission to provide written acknowledgement of receipt of the Subpart C Election Form and/or the effective date of the DCO's Subpart C
(5) All aspects of the proposed election and withdrawal procedures applicable to DCO Applicants including, without limitation, the following:
(a) The prohibition against approving a Registration Application if a related Subpart C Election Form is pending and the Commission has determined that the DCO Applicant's request to become subject to Subpart C should not take effect;
(b) The circumstances under which it may be appropriate for the Commission to approve a Registration Application, but to stay or deny an election to become subject to Subpart C;
(c) If the Commission were to approve a Registration Application, but deny an election to become subject to Subpart C, whether the DCO Applicant should be required to wait a particular amount of time (and if so, what amount of time would be appropriate) before being permitted to elect to become subject to Subpart C pursuant to proposed 39.31(b);
(d) If an election to become subject to Subpart C could be stayed when a Registration Application is approved, whether the stay should be limited to a particular time period (and if so, what time period) after which the election must be permitted to take effect or be denied; and
(e) Any incentives, including but not limited to any waiting period after registration for eligibility to elect to become a Subpart C DCO, to encourage DCO Applicants to submit their Subpart C Election Form with their Registration Applications.
(6) The circumstances under which a DCO or DCO Applicant should be permitted to withdraw its Subpart C Election Form.
(7) All aspects of the proposed procedures for rescinding an election to become subject to Subpart C including, without limitation, the following:
(a) The information that must be contained with the notice of intent to rescind;
(b) The benefits and burden of the mandatory 90-day waiting period between the filing of the notice of intent to rescind and the date the rescission is effective;
(c) The timing, content and methods, and the costs and benefits, of providing the required notices to clearing members, the customers of clearing members, and the general public;
(d) The requirement to remove and refrain from references to the DCO as a Subpart C DCO (and QCCP) and the timing thereof;
(e) The burden of a Subpart C DCO's rescission on bank clearing members and the bank customers of such Subpart C DCO's clearing members, including the costs associated with unwinding and/or transferring positions; and
(f) Whether any alternative or additional conditions should be required of a Subpart C DCO beyond the proposed 90-day waiting period (and if so what alternative or additional conditions would be appropriate). For example, is 90 days sufficient time for clearing members and their customers to take such action as they may deem appropriate in light of such rescission?
(8) Any alternative approach to permitting a DCO or DCO Applicant to elect to become subject to Subpart C.
(9) The provision that a SIDCO whose status as a designated financial market utility is rescinded by the Financial Stability Oversight Council, be immediately deemed to be a Subpart C DCO, pending an election by the former SIDCO to rescind Subpart C DCO status.
(10) What additional disclosures should the Commission require or what other measures should the Commission take to help ensure that Subpart C DCOs obtain QCCP status?
(11) The costs and potential benefits resulting from or arising out of, permitting a DCO to elect to become subject to the provisions of Subpart C, any aspect of the procedures for allowing such election under proposed regulation 39.31, and any aspect of any suggested alternative procedures.
For each comment submitted, the Commission requests that each commenter please provide detailed rationale supporting the response, as well as quantitative data where practicable, particularly with respect to estimates of costs and benefits.
The Commission proposes to add regulation 39.32 in order to implement DCO Core Principles O (Governance Fitness Standards), P (Conflicts of Interest), and Q (Composition of Governing Boards) for SIDCOs and Subpart C DCOs in a manner that is consistent with PFMI Principle 2 (Governance).
As discussed above, DCO Core Principle O states that each DCO must establish governance arrangements that are transparent to fulfill public interest requirements and to permit the consideration of the views of owners and participants.
The governance requirements set forth in proposed regulation 39.32 are designed to enhance risk management and controls by promoting fitness standards for directors and managers, promoting transparency of governance arrangements, and making sure that the interests of a SIDCO's or Subpart C DCO's clearing members and, where relevant, customers are taken into account. Because of the potential impact that a SIDCO's failure could have on the U.S. financial markets, the Commission is proposing these requirements for SIDCOs. Moreover, it would be beneficial to Subpart C DCOs, their members and customers, and the financial system generally to apply these standards to Subpart C DCOs.
Specifically, subsection (a) (General rules) would require a SIDCO or Subpart C DCO to establish governance arrangements that: (1) Are written, clear and transparent, place a high priority on the safety and efficiency of the SIDCO or Subpart C DCO, and explicitly support the stability of the broader financial system and other relevant public interest considerations; (2) ensure that the design, rules, overall strategy, and major decisions of the SIDCO or Subpart C DCO appropriately reflect the legitimate interests of clearing members, customers of clearing members, and other relevant stakeholders; and (3) disclose, to an extent consistent with other statutory and regulatory requirements on confidentiality and disclosure: (i) Major decisions of the board of directors to clearing members, other relevant stakeholders, and to the Commission, and (ii) major decisions of the board of directors having a broad market impact to the public.
Subsection (b) (Governance arrangements) would require the rules and procedures of a SIDCO or Subpart C DCO to: (1) Describe the SIDCO's or Subpart C DCO's management structure; (2) clearly specify the roles and responsibilities of the board of directors and its committees, including the establishment of a clear and documented risk management framework; (3) clearly specify the roles and responsibilities of management; (4) establish procedures for managing conflicts of interest among board members; and (5) assign responsibility and accountability for risk decisions and for implementing rules concerning default, recovery, and wind-down.
Subsection (c) (Fitness standards for the board of directors and management) would require that board members and managers have the appropriate experience, skills, incentives and integrity; risk management and internal control personnel have sufficient independence, authority, resources and access to the board of directors; and that the board of directors include members who are not executives, officers or employees of the SIDCO or Subpart C DCO or of their affiliates.
The Commission requests comment on all aspects of these proposals. The Commission is particularly interested in the following: In light of the potential impact that a SIDCO's failure could have on the U.S. financial system, would compliance with proposed regulation 39.32 reduce systemic risks? Would applying proposed regulation 39.32 to SIDCOs and to Subpart C DCOs contribute to the goals articulated in the Dodd-Frank Act, particularly the goals of Titles VII and VIII of the Dodd-Frank Act? If so, in what ways? If not, why not? What alternatives, if any, to proposed regulation 39.32 would be more effective in reducing systemic risk or accomplishing the goals articulated in the Dodd-Frank Act? Is proposed regulation 39.32 consistent with the PFMIs? If not, what changes need to be made to achieve such consistency? What alternatives to proposed regulation 39.32, if any, would be more effective or efficient for achieving consistency with the standards set forth by the PFMIs? Can proposed regulation 39.32 be effectively implemented and complied with? If not, what changes can be made to permit effective implementation and compliance? What are the potential benefits and costs resulting from, or arising out of, requiring SIDCOs to comply with regulation 39.32? The Commission also requests comment on the potential costs and benefits resulting from, or arising out of, requiring Subpart C DCOs to comply with regulation 39.32. In considering costs and benefits, commenters are requested to address the effect of the proposed regulation not only on a DCO, but also on the DCO's clearing members, the customers of clearing members, and the financial system more broadly. The Commission requests that, where possible, commenters provide quantitative data in their comments, particularly with respect to estimates of costs and benefits. The Commission requests that commenters include a detailed description of any alternatives to proposed regulation 39.32 and estimates of the costs and benefits of such alternatives.
In 2013, the Commission finalized financial resource requirements for SIDCOs in a manner that parallels the financial resources standard in Principle 4 of the PFMIs.
The Commission proposes to further amend regulation 39.29 to enhance financial resources requirements for SIDCOs and Subpart C DCOs and to achieve consistency with the relevant provisions of the PFMIs, in particular Principle 4 and Principle 7.
The Commission first proposes to renumber existing regulation 39.29 to 39.33 and to apply the requirements set forth therein to Subpart C DCOs. The Commission further proposes, for purposes of organization, deleting from paragraph (a)(1) the requirement that, where a clearing member controls another clearing member or is under common control with another clearing member, a SIDCO treat affiliated clearing members as a single clearing member (the “Clearing Member Aggregation Requirement”). The Commission proposes to include such language in new paragraph (a)(4) to clarify that the Clearing Member Aggregation Requirement applies when a SIDCO or Subpart C DCO calculates its financial resources requirements under regulation 39.33(a) as well as its liquidity resources requirements under regulation 39.33(c).
The Commission also proposes amending paragraph (a) to state that the Commission shall, if it deems appropriate, determine whether a SIDCO or Subpart C DCO is systemically important in multiple jurisdictions. In making this determination, the Commission would, in order to limit such determinations to appropriate cases, review whether another jurisdiction had determined the SIDCO or Subpart C DCO to be systemically important according to a designations process that considers whether the foreseeable effects of a failure or disruption of the derivatives clearing organization could threaten the stability of each relevant jurisdiction's financial system. In addition, the Commission proposes amending paragraph (a) to state that the Commission shall also determine, if it deems appropriate, whether any of the activities of a SIDCO
The Commission proposes adding paragraphs (c), (d), and (e) to address the liquidity of SIDCOs' and Subpart C DCOs' financial resources. These new paragraphs are intended to address the gaps between current part 39 requirements and standards set forth in Principle 7.
Proposed paragraph (c)(1) would require a SIDCO or Subpart C DCO to maintain eligible liquidity resources that will enable the SIDCO or Subpart C DCO to meet its intraday, same-day, and multiday settlement obligations, as defined in regulation 39.14(a), with a high degree of confidence under a wide range of stress scenarios, including the default of the member creating the largest liquidity requirements under extreme but plausible circumstances. Maintaining resources that enable the DCO to meet these obligations will help prevent a SIDCO or Subpart C DCO from defaulting on its obligations to non-defaulting clearing members, which is particularly important for a SIDCO because of the potential impact that the failure of a SIDCO could have on the U.S. financial markets.
Proposed paragraph (c)(2) would require a SIDCO or Subpart C DCO to maintain liquidity resources that are sufficient to satisfy the obligations required by new paragraph (c)(1) in all relevant currencies for which the SIDCO or Subpart C DCO has settlement obligations to its clearing members. A SIDCO should be able promptly to meet its obligations in each relevant currency. If a SIDCO has sufficient funds to meet an obligation, but the funds are not in the correct currency, then the SIDCO cannot meet that obligation in a timely manner, which could lead to a disruption of the SIDCO's services. Such disruption could, in turn, have a significant impact on the financial stability of the U.S. economy.
Proposed paragraph (c)(3) would limit a SIDCO or Subpart C DCO to using only certain types of liquidity resources to satisfy the minimum liquidity requirement set forth in proposed paragraph (c)(1).
Under proposed paragraph (c)(3)(ii), a SIDCO or Subpart C DCO would be required to take appropriate steps to verify that its qualifying liquidity arrangements do not include material adverse change provisions and are enforceable, and will be highly reliable, even in extreme but plausible market conditions. This requirement is consistent with Principle 7.
Also consistent with Principle 7, under proposed paragraph (c)(4), if a SIDCO or Subpart C DCO maintains liquid financial resources in addition to those required to satisfy the Cover One requirement, then those resources should be in the form of assets that are likely to be saleable with proceeds available promptly or acceptable as collateral for lines of credit, swaps, or repurchase agreements on an
Pursuant to proposed paragraphs (d)(1)–(2), a SIDCO or Subpart C DCO would be required to monitor its liquidity providers in a manner consistent with Principle 7. Proposed paragraph (d)(1) would define “liquidity provider” to mean any of the following: (i) A depository institution, a U.S. branch and agency of a foreign banking organization, a trust company, or a syndicate of depository institutions, U.S. branches and agencies of foreign banking organizations, or a trust companies providing a line of credit, foreign exchange swap facility or repurchase facility to the SIDCO or Subpart C DCO; and (ii) Any other counterparty relied upon by a SIDCO or Subpart C DCO to meet its minimum liquidity resources requirement under paragraph (c) of this section. Moreover, under proposed paragraph (d)(5), a SIDCO with access to accounts and services at a Federal Reserve Bank is encouraged to use those services, where practical, to enhance its management of liquidity risk.
The Commission requests comment on all aspects of proposed regulation 39.33. The Commission is particularly interested in the following:
Are the proposed considerations in paragraph (a)(2) for determining whether a DCO is systemically important in multiple jurisdictions and in paragraph (a)(3) for determining whether it is engaged in activities with a more complex risk profile workable? Should alternative considerations be used?
In proposed paragraph (d)(4), should the Commission specify the frequency with which a SIDCO or Subpart C DCO must test its procedures for accessing its liquidity resources? In proposed paragraph (c)(3)(i)(E)(
In addition, in light of the potential impact that a SIDCO's failure could have on the U.S. financial system, would compliance with proposed regulation 39.33 reduce systemic risks? Would proposed regulation 39.33 contribute to the goals articulated in the Dodd-Frank Act, particularly the goals of Titles VII and VIII of the Dodd-Frank Act? If so, in what ways? If not, why not? What alternatives, if any, to proposed regulation 39.33 would be more effective in reducing systemic risk or accomplishing the goals articulated in the Dodd-Frank Act? Is proposed regulation 39.33 consistent with the PFMIs? Are there more effective or efficient means for achieving consistency with the liquidity standards set forth in Principle 7? If not, what changes need to be made to achieve such consistency? What alternatives to proposed regulation 39.33, if any, would be more effective or efficient for achieving consistency with the standards set forth by the PFMIs? The Commission requests that commenters include a detailed description of any such alternatives and estimates of the costs and benefits of such alternatives. Should regulation 39.33 provide that only a SIDCO can be deemed systemically important in multiple jurisdictions? Can proposed regulation 39.33 be effectively implemented and complied with? If not, what changes can be made to permit effective implementation and compliance? What are the potential costs and benefits resulting from, or arising out of, requiring a SIDCO to comply with proposed regulation 39.33? What are the potential costs and benefits resulting from, or arising out of, requiring Subpart C DCOs to comply with proposed regulation 39.33? In considering costs and benefits, commenters are requested to address the effect of the proposed regulation not only on a DCO, but also on the DCO's clearing members, the customers of clearing members, and the financial system more broadly. The Commission requests that, where possible, commenters provide quantitative data in their comments, particularly with respect to estimates of costs and benefits.
In 2013, the Commission finalized regulation 39.30, which enhanced system safeguards requirements for SIDCOs for business continuity and disaster recovery, and included a two-hour recovery time objective (“RTO”) for SIDCOs.
The Commission requests comment on all aspects of proposed regulation 39.34. The Commission is particularly interested in the following: Would applying proposed regulation 39.34 to Subpart C DCOs contribute to the goals articulated in the Dodd-Frank Act, particularly the goals of Titles VII and VIII of the Dodd-Frank Act? If so, in what ways? If not, why not? What alternatives, if any, to proposed regulation 39.34 would be more effective in reducing systemic risk or accomplishing the goals articulated in the Dodd-Frank Act? Is proposed regulation 39.34 consistent with the PFMIs? If not, what changes need to be made to achieve such consistency? What alternatives to proposed regulation 39.34, if any, would be more effective or efficient for achieving consistency with the standards set forth by the PFMIs? The Commission requests that commenters include a detailed description of any such alternatives and estimates of the costs and benefits of such alternatives. Can proposed regulation 39.34 be effectively implemented and complied with? If not, what changes can be made to permit effective implementation and compliance? What are the potential costs and benefits resulting from, or arising out of, requiring a SIDCO to comply with proposed regulation 39.34? What are the potential costs and benefits resulting from, or arising out of, requiring Subpart C DCOs to comply with proposed regulation 39.34? In considering costs and benefits, commenters are requested to address the effect of the proposed regulation not only on a DCO, but also on the DCO's clearing members, the customers of clearing members, and the financial system more broadly. The Commission requests that, where possible, commenters provide quantitative data in their comments, particularly with respect to estimates of costs and benefits.
The Commission is proposing regulation 39.35, which adds requirements pursuant to DCO Core Principle G, to address certain potential gaps between Commission regulations and Principles 4 and 7.
Regulation 39.16 currently requires a DCO to adopt procedures permitting it to take timely action to contain losses and liquidity pressures and to continue meeting its obligations in the event of a default on the obligations of a clearing member to the DCO.
1. How the SIDCO or Subpart C DCO would allocate losses exceeding the financial resources available to the SIDCO or Subpart C DCO;
2. How the SIDCO or Subpart C DCO would arrange for the repayment of any funds the SIDCO or Subpart C DCO may borrow; and
3. How the SIDCO or Subpart C DCO would replenish any financial resources it may employ during such a stress event, so that the SIDCO or Subpart C DCO would be able to continue to operate in a safe and sound manner.
Proposed regulation 39.35 addresses significant consequences that could result from a clearing member's default. Specifically, a DCO might not have sufficient financial resources following a clearing member's default either to cover the default or to fulfill its settlement obligations. Similarly, a DCO may be unable to fulfill its settlement obligations due to a liquidity shortfall exceeding its financial resources. In order to avoid the negative effect on its clearing members, their customers, and on the financial system more broadly of a DCO's failure promptly to meet its settlement obligations, it would be prudent for a DCO to have a recovery plan that addresses these scenarios and, given their importance to the U.S. financial system, it is critical for SIDCOs to have such plans. In addition, because this plan would be specified in the DCO's rules and/or procedures, it would be disclosed to clearing members, their customers, and the broader public. Such transparency would likely help clearing members, their customers, and other market participants properly allocate capital and other resources as well as facilitate the development of their own recovery plans.
The Commission requests comment on all aspects of these proposals. The Commission is particularly interested in the following: In light of the potential impact that a SIDCO's failure could have on the U.S. financial system, would compliance with proposed regulation 39.35 reduce systemic risks? Would proposed regulation 39.35 contribute to the goals articulated in the Dodd-Frank Act, particularly the goals of Titles VII and VIII of the Dodd-Frank Act? If so, in what ways? If not, why not? What alternatives, if any, to proposed regulation 39.35 would be more effective in reducing systemic risk or accomplishing the goals articulated in the Dodd-Frank Act? Is proposed regulation 39.35 consistent with the PFMIs? If not, what changes need to be made to achieve such consistency?
Proposed regulation 39.36 would include additional risk management requirements for SIDCOs and Subpart C DCOs. As noted above, regulation 39.13 establishes the risk management requirements that a DCO would have to meet in order to comply with Core Principle D
The Commission is proposing regulation 39.36 to address certain differences between Commission regulations and Principles 4, 6, 7, and 9.
Specifically, and consistent with Principle 4, proposed regulation 39.36(a)(1) would require a SIDCO or Subpart C DCO to perform stress testing, on a daily basis, of its financial resources using predetermined parameters and assumptions. In addition, proposed regulation 39.36(a)(2) would require a SIDCO or Subpart C DCO to perform comprehensive analyses of stress testing scenarios and underlying parameters to ascertain that they are appropriate for determining the SIDCO's or Subpart C DCO's required level of financial resources in current and evolving market conditions. Proposed regulation 39.36(a)(3) would also require a SIDCO or Subpart C DCO to perform the analyses in proposed regulation 39.36(a)(2) “at least monthly when products cleared or markets served display high volatility, become less liquid, or when the size or concentration of positions held by clearing members increases significantly.” A SIDCO or Subpart C DCO would also be required to “evaluate [its] stress testing scenarios, models, and underlying parameters more frequently than once a month,” where appropriate. For purposes of the analyses in proposed regulation 39.36(a)(1) and proposed regulation 39.36(a)(2), proposed regulation 39.36(a)(4) would require a SIDCO or Subpart C DCO to include the following stress scenarios for both defaulting clearing members' positions and possible price changes in liquidation periods: (i) Relevant peak historic price volatilities; (ii) shifts in other market factors including, as appropriate, price determinants and yield curves; (iii) multiple defaults over various time horizons; (iv) simultaneous pressures in funding and asset markets; and (v) a range of forward-looking stress scenarios in a variety of extreme but plausible market conditions. Moreover, proposed regulation 39.36(a)(5) would require each SIDCO and Subpart C DCO to establish procedures for reporting stress test results to its risk management committee or board of directors, as appropriate, and for using the results to assess the adequacy of, and to adjust the SIDCO's or Subpart C DCO's total financial resources. Finally, proposed regulation 39.36(a)(6) would require each SIDCO and Subpart C DCO to use the results of its financial resources stress testing to help make sure it meets the minimum financial resources requirement set forth in proposed regulation 39.33(a).
In addition, and consistent with Principle 7, the Commission is proposing stress testing requirements for liquidity resources that are analogous to the stress testing requirements for financial resources in proposed regulation 39.36(a), with the exception that the stress testing scenarios required by proposed regulation 39.36(c)(5) should consider the following: (i) All entities that might pose material liquidity risks to the DCO, including settlement banks, permitted depositories, liquidity providers, and other entities; (ii) intraday and multiday scenarios, where appropriate; (iii) inter-linkages between its clearing members and the multiple roles that they may play in in the SIDCO's or Subpart C DCO's risk management (
Proposed regulation 39.36(c)(7) would require a SIDCO or Subpart C DCO to use the results of such stress tests to make certain that it meets the financial resources requirement set forth in regulation 39.33(a), and the liquidity resources requirements set forth in regulation 39.33(c). In addition, each SIDCO and Subpart C DCO would be required to perform, on an annual basis, a full validation of its financial risk management model and its liquid risk management model.
Proposed paragraphs (a), (c), (d), and (e) are important because stress testing scenarios, underlying risk factors that constitute such scenarios, and the relationship between different risk
As noted above, Principle 6 requires a CCP's margin system to take into account the “risks and particular attributes of each product, portfolio and market that it serves” and be calibrated accordingly.
It is vitally important that all DCOs obtain an in-depth understanding of their exposure to credit risk. As financial derivatives markets expand globally and counterparty credit risk increases in size and complexity, a DCO's ability to assess its exposure to credit risk becomes even more critical. These proposed regulations are intended to enhance the ability of SIDCOs and Subpart C DCOs to manage their risk exposure. Because a SIDCO plays a significant role in the financial markets, accurate and dynamic risk management is critical not only to the SIDCO, but also to the stability of the broader U.S. financial system.
Under proposed paragraph (g), and consistent with Principle 9, a SIDCO or Subpart C DCO would be required to monitor, manage, and limit its credit and liquidity risks arising from its settlement banks.
The Commission requests comment on all aspects of proposed regulation 39.36. The Commission is particularly interested in the following: In light of the potential impact that a SIDCO's failure could have on the U.S. financial system, would compliance with proposed regulation 39.36 reduce systemic risks? Would proposed regulation 39.36 contribute to the goals articulated in the Dodd-Frank Act, particularly the goals of Titles VII and VIII of the Dodd-Frank Act? If so, in what ways? If not, why not? What alternatives, if any, to proposed regulation 39.36 would be more effective in reducing systemic risk or accomplishing the goals articulated in the Dodd-Frank Act? Is proposed regulation 39.36 consistent with the PFMIs? If not, what changes need to be made to achieve such consistency? What alternatives to proposed
The Commission is proposing regulation 39.37 to set forth additional public disclosure requirements for SIDCOs and Subpart C DCOs.
Specifically, proposed regulation 39.37 would require SIDCOs and Subpart C DCOs to disclose certain information to the public and to the Commission. First, consistent with Principle 23, a SIDCO or Subpart C DCO would be required to disclose its responses to the CPSS–IOSCO Disclosure Framework, discussed in section II.C.2, above. Further, a SIDCO or Subpart C DCO would be required to review and update at least every two years and following material changes to the SIDCO's or Subpart C DCO's system or its environment, its responses to the Disclosure Framework to ensure the continued accuracy and usefulness of the responses.
Also under proposed regulation 39.37, a SIDCO or Subpart C DCO would be required, consistent with Principle 14, to publish its rules, policies, and procedures describing whether customer funds are protected on an individual or omnibus basis and whether customer funds are subject to any legal or operational constraints that may impair the ability of the SIDCO or Subpart C DCO to segregate or port the positions and related collateral of a clearing member's customers. This additional transparency, particularly with respect to information regarding the protection of customer positions and related collateral, is important for the safe and effective transfer of positions and collateral in a default, resolution or insolvency scenario.
The Commission requests comment on all aspects of these proposals. The Commission is particularly interested in the following: In light of the potential impact that a SIDCO's failure could have on the U.S. financial system, would compliance with proposed regulation 39.37 reduce systemic risks? Would proposed regulation 39.37 contribute to the goals articulated in the Dodd-Frank Act, particularly the goals of Titles VII and VIII of the Dodd-Frank Act? If so, in what ways? If not, why not? What alternatives, if any, to proposed regulation 39.37 would be more effective in reducing systemic risk or accomplishing the goals articulated in the Dodd-Frank Act? Is proposed regulation 39.37 consistent with the PFMIs? If not, what changes need to be made to achieve such consistency? What alternatives to proposed regulation 39.37, if any, would be more effective or efficient for achieving consistency with the standards set forth by the PFMIs? Can proposed regulation 39.37 be effectively implemented and complied with? If not, what changes can be made to permit effective implementation and compliance? What are the potential benefits and costs resulting from, or arising out of, requiring SIDCOs to comply with regulation 39.37? The Commission also requests comment on the potential costs and benefits resulting from, or arising out of, requiring Subpart C DCOs to comply with regulation 39.37. In considering costs and benefits, commenters are requested to address the effect of the proposed regulation not only on a DCO, but also on the DCO's clearing members, the customers of clearing members, and the financial system more broadly. The Commission requests that, where possible, commenters provide quantitative data in their comments, particularly with respect to estimates of costs and benefits. The Commission requests that commenters include a detailed description of any alternatives to proposed regulation 39.37 and estimates of the costs and benefits of such alternatives.
Consistent with Principle 21, proposed regulation 39.38 would require a SIDCO or Subpart C DCO to design efficiently and effectively its clearing and settlement arrangements,
It would appear to be prudent for SIDCOs and Subpart C DCOs to comply with such international standards of efficiency and effectiveness. A SIDCO or Subpart C DCO that is inefficient or ineffective could distort financial activity and market structure, increasing financial and other risks to the SIDCO's or Subpart C DCO's participants.
The Commission requests comment on all aspects of these proposals. The Commission is particularly interested in the following: In light of the potential impact that a SIDCO's failure could have on the U.S. financial system, would compliance with proposed regulation 39.38 reduce systemic risks? Would proposed regulation 39.38 contribute to the goals articulated in the Dodd-Frank Act, particularly the goals of Titles VII and VIII of the Dodd-Frank Act? If so, in what ways? If not, why not? What alternatives, if any, to proposed regulation 39.38 would be more effective in reducing systemic risk or accomplishing the goals articulated in the Dodd-Frank Act? Is proposed regulation 39.38 consistent with the PFMIs? If not, what changes need to be made to achieve such consistency? What alternatives to proposed regulation 39.38, if any, would be more effective or efficient for achieving consistency with the standards set forth by the PFMIs? Can proposed regulation 39.38 be effectively implemented and complied with? If not, what changes can be made to permit effective implementation and compliance? What are the potential benefits and costs resulting from, or arising out of, requiring SIDCOs to comply with regulation 39.38? The Commission also requests comment on the potential costs and benefits resulting from, or arising out of, requiring Subpart C DCOs to comply with regulation 39.38. In considering costs and benefits, commenters are requested to address the effect of the proposed regulation not only on a DCO, but also on the DCO's clearing members, the customers of clearing members, and the financial system more broadly. The Commission requests that, where possible, commenters provide quantitative data in their comments, particularly with respect to estimates of costs and benefits. The Commission requests that commenters include a detailed description of any alternatives to proposed regulation 39.38 and estimates of the costs and benefits of such alternatives.
The Commission is proposing regulation 39.39 to require a SIDCO or Subpart C DCO to maintain viable plans for recovery and orderly wind-down. In particular, regulation 39.39 is designed to protect the members of such DCOs and their customers, as well as the financial system more broadly from the consequences of a disorderly failure of such a DCO.
As noted above, Principle 3 requires a CCP to have a sound risk management framework for comprehensively managing legal, credit, liquidity, operational, and other risks.
Accordingly, proposed regulation 39.39 requires a SIDCO or Subpart C DCO to develop additional plans that specifically address “recovery” and “wind-down.” The Commission proposes defining “recovery” as the actions of a SIDCO or Subpart C DCO, consistent with its rules, procedures, and other
The Commission is proposing to require each SIDCO and Subpart C DCO to maintain viable plans for: (i) Recovery or orderly wind-down, necessitated by credit losses or liquidity shortfalls; and (ii) recovery or orderly wind-down, necessitated by general business risk, operational risk, or any other risk that threatens the SIDCO's or Subpart C DCO's viability as a going concern. The Commission also proposes requiring that the recovery and wind-down plans of SIDCOs and Subpart C DCOs meet certain standards, set forth in proposed subsection (c). Specifically, the Commission proposes requiring a SIDCO or Subpart C DCO to identify scenarios that may potentially prevent it from being able to provide its critical operations and services as a going concern and assess the effectiveness of a full range of options for recovery or orderly wind-down. The SIDCO's or Subpart C DCO's plans should also include procedures for informing the Commission, as soon as practicable, when the recovery plan is initiated or wind-down is pending, as well as procedures for providing the Commission and any other relevant authorities (e.g., the Federal Deposit Insurance Corporation) with information necessary for resolution planning.
Proposed regulation 39.39(d) requires that the recovery and wind-down plans of a SIDCO or Subpart C DCO be supported by certain resources. Specifically, in evaluating the resources available to cover any uncovered credit losses or liquidity shortfalls as part of its recovery or wind-down plans necessitated by credit losses of liquidity shortfalls, a SIDCO or Subpart C DCO would be permitted to consider, among other things, assessments of additional resources provided for under its rules that it reasonably expects to collect from non-defaulting members. In addition, a SIDCO or Subpart C DCO would be required to maintain sufficient unencumbered liquid financial assets, funded by the equity of its owners, to implement its recovery or wind-down plans necessitated by general business risk, operational risk, or any other risk that threatens the SIDCO's or Subpart C DCO's viability as a going concern. Moreover, while the resources required by regulation 39.11(a)(2) may be sufficient to maintain a SIDCO's or Subpart C DCO's recovery or wind-down plans necessitated by general business risk, operational risk, or any other risk that threatens the SIDCO's or Subpart C DCO's viability as a going concern, a SIDCO or Subpart C DCO would be required to (i) analyze such plans, including the particular circumstances and risks associated with the SIDCO or Subpart C DCO, and (ii) maintain any additional resources that may be necessary to implement such plans.
Proposed regulation 39.39(d)(3) would prohibit counting the resources maintained to meet the requirements of regulations 39.11(a)(1) and 39.33 as available, in whole or in part, for uses other than addressing the default of one or more clearing members. Further, proposed regulation 39.39(d)(3) would prohibit a SIDCO or Subpart C DCO from counting the same resources as available to address both its recovery or orderly wind-down, necessitated by credit losses or liquidity shortfalls; and its recovery or orderly wind-down, necessitated by general business risk, operational risk, or any other risk that threatens the SIDCO's or Subpart C DCO's viability as a going concern. In other words, if a SIDCO or Subpart C DCO allocates resources, in whole or in part, to execute its recovery plans required by proposed regulation 39.39(b)(1), it may not allocate those same resources, in whole or in part, to satisfy the requirements of proposed regulation 39.39(b)(2).
Finally, under 39.39(e), a SIDCO or Subpart C DCO would be required to maintain viable plans for raising additional financial resources, including, where appropriate, capital, in a scenario in which it is unable, or virtually unable, to comply with any financial resource requirements set forth in part 39. These plans would also have to be approved by the SIDCO's or Subpart C DCO's board of directors and be updated regularly.
These proposed regulations are intended to address certain differences between existing Commission regulations and the standards set forth in the PFMIs. In addition, it would appear to be necessary for a SIDCO to maintain and regularly update a recovery and wind-down plan so as to reduce or attempt to control the potential impact a failure or disruption of the SIDCO's operations would have on the stability of the U.S. financial markets.
The Commission requests comment on all aspects of these proposals. The Commission is particularly interested in the following: In light of the potential impact that a SIDCO's failure could have on the U.S. financial system, would compliance with proposed regulation 39.39 reduce systemic risks? Would proposed regulation 39.39 contribute to the goals articulated in the Dodd-Frank Act, particularly the goals of Titles VII and VIII of the Dodd-Frank Act? If so, in what ways? If not, why not? What alternatives, if any, to proposed regulation 39.39 would be more effective in reducing systemic risk or accomplishing the goals articulated in the Dodd-Frank Act? Is proposed regulation 39.39 consistent with the PFMIs? If not, what changes need to be
Proposed regulation 39.40 would make clear that Subpart C is intended to establish regulations that, together with Subpart A and Subpart B, are consistent with the DCO Core Principles set forth in Section 5b(c)(2) of the CEA and the PFMIs. Specifically, to the extent of any ambiguity, the Commission intends to interpret the regulations set forth in part 39 in a manner that is consistent with the standards set forth in the PFMIs. Such consistency would appear to promote international harmonization and is intended to allow the bank clearing members and bank customers of SIDCOs and Subpart C DCOs to receive the more favorable capital treatment under the Basel CCP Capital Requirements.
The Commission requests comment on all aspects of these proposals. Specifically, the Commission requests comment on whether there are more effective or efficient means for achieving consistency with the standards set forth by the PFMIs. The Commission requests that commenters include a detailed description of any such alternatives and estimates of the costs and benefits of any such alternatives.
In 2013, the Commission adopted regulation 39.31, which implemented special enforcement authority over SIDCOs granted to the Commission under section 807(c) of the Dodd-Frank Act.
The Commission proposes moving existing paragraph (c) of regulation 39.30 (Scope) to proposed regulation 39.42.
The Commission proposes amending regulation 140.94 so that certain Commission functions contained in these proposed regulations would be delegated to the Director of the Division of Clearing and Risk and to such staff members as the Director may designate. Specifically, the Commission proposes to delegate all functions reserved to the Commission in proposed regulation 39.31 including, for example, the authority to request that a DCO provide information supplementing a Subpart C Election Form that it has filed with the Commission; to determine whether an election to be subject to Subpart C should be permitted to become effective, stayed or denied; and to provide any notices regarding the foregoing. The Commission also proposes to delegate to the Director of the Division of Clearing and Risk and to his or her designees the decision described in regulation 39.34(d) (whether to grant a SIDCO or a Subpart C DCO up to one year to comply with any provision of regulation 39.34).
Certain of the proposed requirements for SIDCOs and Subpart C DCOs necessitate certain clarifications to part 190 of the Commission's regulations. Specifically, proposed regulation 39.35(a) would require a SIDCO or Subpart C DCO to “adopt explicit rules and procedures that address fully any loss arising from any individual or combined default relating to any clearing members' obligations to the SIDCO or Subpart C DCO.” Proposed regulation 39.37(b) would require a SIDCO or Subpart C DCO to maintain viable plans for recovery and orderly wind-down. In addition, SIDCOs and Subpart C DCOs must comply with Core Principle R, which require all registered DCOs to “have a well-founded, transparent, and enforceable legal framework for each aspect of the activities of the DCO.”
The Commission notes that the risk management practices of DCOs vary depending, in part, on the types of assets that the DCO clears. For example, some DCOs ring-fence mutualized default resources related to certain asset classes separately from resources related to other such classes, in part, because of the different risk profiles associated with those asset classes and a desire among members to avoid exposure to contributions to mutualized resources for asset classes in which such members do not participate. In such cases, the DCOs have updated their financial safeguards arrangements to accommodate these differences.
Recognizing the diversity of financial safeguard arrangements among DCOs, it would appear to be prudent to clarify certain language in part 190 to materially aid compliance with Core Principle R and the proposed regulations specified above. Specifically, regulation 190.09 defines the scope of “member property” in the context of a DCO bankruptcy. The Commission notes that when regulation
Therefore, the Commission proposes amending paragraph (b) of regulation 190.09 to clarify that the scope of member property will be determined based on the by-laws and rules of the relevant DCO. Specifically, this amendment would clarify that the inclusion of guaranty fund contributions and other property as “member property” in the context of a DCO bankruptcy would be subject to the by-laws or rules of the DCO. Thus, under proposed regulation 190.09(b), the Commission proposes that a DCO's distinct guaranty funds, which are established for separate product classes by the DCO's by-laws or rules, shall be treated separately from one another to the extent required by the DCO's by-laws or rules.
The Commission requests comment on all aspects of this proposal. Specifically, the Commission requests comment on whether the amendments to regulation 190.09 will impose any costs on DCOs, clearing members, or other market participants, and whether there are more effective or efficient means for recognizing the diversity of financial safeguard arrangements among DCOs in a bankruptcy. The Commission requests that commenters include a detailed description of any such alternatives and estimates of the costs and benefits of such alternatives.
Revised regulation 190.09 would take effect upon publication of the final rulemaking in the
The Paperwork Reduction Act (“PRA”), 44 U.S.C. 3501 et seq., provides that an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number from the Office of Management and Budget (“OMB”). This rulemaking contains recordkeeping and reporting requirements that are collections of information within the meaning of the PRA. In particular, although the Commission does not anticipate that more than ten persons will respond initially to this collection of information, the term “ten or more persons,” which triggers PRA compliance, has been deemed to apply to “[a]ny recordkeeping, reporting, or disclosure requirement contained in a rule of general applicability.” 5 CFR. 1320.3(c)(4). The Commission will submit an information collection request in the form of an amendment to existing OMB control number 3038–0081.
This rulemaking contains many provisions that would qualify as collections of information, for which the Commission has already sought and obtained a control number from OMB. The burden hours associated with those provisions are not replicated here because the Commission is obligated to account for PRA burden once, and the PRA encourages multiple applications of a single collection.
It should be noted that among the thirteen DCOs presently registered with the Commission, only two are SIDCOs. Moreover, not all remaining DCOs or all DCO Applicants are likely to elect to become Subpart C DCOs (for example, DCOs that are based outside of the U.S. may seek to obtain QCCP status through regulation by their home country regulator). Thus, the burden calculations herein are based on an estimate of how many DCOs are SIDCOs and how DCOs and DCO Applicants are likely to elect to become Subpart C DCOs. Additionally, many of the collections herein, in particular those related to electing Subpart C DCO status, are expected to be one-time events for a DCO. It is anticipated that three DCOs will elect to become subject to Subpart C in the year following the adoption of final rules, with possibly one or two additional elections thereafter.
Finally, it is not possible to precisely estimate the reporting and recordkeeping burden for the SIDCOs and Subpart C DCOs that will be affected by the collections contained in this rulemaking, as the actual burden will be dependent on the operations and staffing of each particular SIDCO and Subpart C DCO and the manner in which they choose to implement compliance with certain requirements. Therefore, the burden estimates below are meant to be a composite of the burdens that will be absorbed across all SIDCOs and Subpart C DCOs, to the extent that the provisions for which information collection burdens are applicable.
Proposed regulations 39.31(b) and 39.31(c) would establish the process whereby DCO and DCO Applicants, respectively, may elect to become Subpart C DCOs subject to the provisions of Subpart C. The election involves filing the proposed Subpart C Election Form that would be contained in proposed appendix B to part 39 (including completing the certifications therein, providing proposed exhibits A through G, and drafting and publishing the DCO's responses to the Disclosure Framework, and, when applicable, the DCO's Quantitative Information Disclosure). Additionally, paragraphs (b)(2) and (c)(3) of proposed regulation 39.31 provide for Commission requests for supplemental information from those requesting Subpart C DCO status; paragraphs (b)(3) and (c)(4) require amendments to the Subpart C Election Form in the event that a DCO or DCO Applicant, respectively, discovers a material omission or error in, or if there is a material change in, the information provided in the Subpart C Election Form; paragraphs (b)(7) and (c)(5) permit a DCO or DCO Applicant, respectively, to submit a notice of withdrawal to the Commission in the event the DCO or DCO Applicant determines not to seek Subpart C DCO status prior to such status becoming effective; and paragraph (e) establishes the procedures by which a Subpart C DCO may rescind its Subpart C DCO status after it has been permitted to take effect. Each of these requirements implies recordkeeping that would be produced by a DCO to the Commission on an occasional basis to demonstrate compliance with the proposed rules.
It is estimated presently that it is likely that only three DCOs will elect to become Subpart C DCOs, but it has been
Proposed regulations 39.32(a) and (b) establish governance requirements applicable to each SIDCO and Subpart C DCO, including specific provisions requiring written and disclosed governance arrangements and the disclosure of certain decisions on particular, not regularly scheduled, occasions, to the Commission, the SIDCO or Subpart C DCO's clearing members, other relevant stakeholders and/or the public. Proposed regulation 39.33(d) requires a SIDCO or Subpart C DCO to conduct due diligence on its liquidity providers and to conduct periodic testing with respect to its access to liquidity resources. Proposed regulation 39.33(e) establishes documentation requirements with respect to the supporting rationale for the financial and liquidity resources it maintains pursuant to proposed regulations 39.33(a) and 39.33(c), respectively.
Proposed regulation 39.36(c)(6) requires each SIDCO and Subpart C DCO to report stress test results to its risk management committee or board of directors. Proposed regulation 39.37(a) requires each SIDCO and Subpart C DCO to complete and to publicly disclose its responses to the Disclosure Framework and, when applicable, to complete and disclose a Quantitative Information Disclosure. As described above and as accounted for in the previous portion of this PRA burden estimate, these tasks will be conducted by Subpart C DCOs as part of their election to become subject to Subpart C. SIDCOs and DCOs also are required to update their Disclosure Framework responses and Quantitative Information Disclosure every two years. Proposed regulations 39.37(c) and (d) require each SIDCO or Subpart C DCO to disclose, publicly and to the Commission, certain data on transaction volume and values and their rules, policies, and procedures related to the segregation and the portability of customers' positions and funds.
Proposed regulation 39.38 requires each SIDCO or Subpart C DCO to establish a process to review the efficiency and effectiveness of its clearing and settlement arrangements, operating structure and procedures, scope of products cleared and use of technology. Finally, proposed regulations 39.39(b) and (c) require each SIDCO and Subpart C DCO to develop and maintain viable plans for the recovery or wind-down of the SIDCO or Subpart C DCO necessitated by certain circumstances. Each of these requirements implies recordkeeping that would be produced by the SIDCO or Subpart C DCO to the Commission on an occasional basis to demonstrate compliance with the proposed rules.
It is not possible to estimate with precision how many DCOs may, in the future, be determined to be SIDCOs and how many may elect to become Subpart C DCOs, but it conservatively has been estimated below that, collectively, a total of seven DCOs may be determined to be SIDCOs or may opt to become Subpart C DCOs. Presently, there are two SIDCOs and is has been estimated that five DCOs will elect to become Subpart C DCOs. Consequently, the burden hours for the proposed collection of information in this rulemaking have been estimated as follows:
The Commission invites the public and other Federal agencies to comment on any aspect of the proposed information collection requirements discussed above. Pursuant to 44 U.S.C.3506(c)(2)(B), the Commission will consider public comments on such proposed requirements in:
• Evaluating whether the proposed collections of information are necessary for the proper performance of the functions of the Commission, including whether the information will have a practical use;
• Evaluating the accuracy of the estimated burden of the proposed information collection requirements, including the degree to which the methodology and the assumptions that the Commission employed were valid;
• Enhancing the quality, utility, and clarity of the information proposed to be collected; and
• Minimizing the burden of the proposed information collection requirements on SIDCOs and Subpart C DCOs, including through the use of appropriate automated, electronic, mechanical, or other technological information collection techniques,
Copies of the submission from the Commission to OMB are available from the CFTC Clearance Officer, 1155 21st Street NW., Washington, DC 20581, (202) 418–5160 or from
• The Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503, Attn: Desk Officer of the Commodity Futures Trading Commission;
• (202) 395–6566 (fax); or
•
Please provide the Commission with a copy of submitted comments so that all comments can be summarized and addressed in the final rulemaking, and please refer to the
The Regulatory Flexibility Act (“RFA”) requires that agencies consider whether the rules they propose will have a significant economic impact on a substantial number of small entities and, if so, provide a regulatory flexibility analysis respecting the impact.
Section 15(a) requires the Commission to consider the costs and benefits of its actions before promulgating a regulation under the CEA or issuing certain orders.
As discussed above, this proposed rulemaking would: Address gaps between part 39 of the Commission's regulations and the standards set forth in the PFMIs; provide a procedure for Subpart C DCOs to elect to become subject to the provisions of Subpart C; and make related technical amendments to regulation 190.09. As proposed, revised Subpart C, together with Subpart A and Subpart B, would establish regulations that are consistent with the PFMIs.
The Commission does not have quantification or estimation of the costs associated with the proposed regulations. However, in qualitative terms, the Commission recognizes that the proposed regulations are comprehensive and, compared to the status quo, may impose important costs on SIDCOs and Subpart C DCOs depending, in particular, on the SIDCO's or Subpart C DCO's current financial and liquid resources, and risk management framework. In particular, these proposed regulations may require SIDCOs and Subpart C DCOs to undertake a comprehensive review and analysis of their current policies, procedures, and systems in order to determine where it may be necessary to design and implement additional or alternative policies, procedures, and systems. Such costs may increase operational, administrative, and compliance costs for a SIDCO or Subpart C DCO. The Commission requests comment on the potential costs of the proposed regulations on SIDCOs and Subpart C DCOs, including, where possible, quantitative data. In addition, the Commission requests comment on the competitive impact, the costs as well as benefits, resulting from, or arising out of, requiring SIDCOs to comply with the provisions set forth in Subpart C, while permitting other registered DCOs to elect to become subject to these requirements (or to forego such election).
In addition to the costs for SIDCOs and Subpart C DCOs, the Commission has considered the costs the proposed regulations would impose upon market participants and the public. To the extent costs increase, the Commission notes that higher trading prices for market participants (
As discussed above, proposed regulation 39.31 would set forth the procedures a DCO would be required to follow to elect to become subject to the provisions of Subpart C.
The Commission notes that proposed regulation 39.31 would only apply to a DCO that the Council has not designated to be systemically important and that elects to become subject to the provisions of Subpart C. Proposed regulation 39.31, by providing an opt-in procedure and a procedure to rescind such election offers the benefit of permitting a DCO that is not systemically important may weigh (i) (1) the cost of preparing a comprehensive and complete Subpart C Election Form in accordance with the requirements set forth in proposed regulation 39.31 and (2) the costs associated with the requirements set forth in Subpart C against (ii) the benefit of attaining QCCP status, and, thus, to decide for itself whether to become subject to Subpart C.
As discussed below, a Subpart C DCO's compliance with the provisions of Subpart C would cause the Subpart C DCO to incur certain costs. Some of these costs may then be incurred, indirectly, by the Subpart C DCO's clearing members and their customers. The Commission requests comments concerning examples of such costs. If a clearing member or its customer would incur greater costs by clearing through a Subpart C DCO rather than through a DCO that has not opted-in to Subpart C, then that clearing member or customer may decide not to clear through a Subpart C DCO. The Commission requests comment as to how these indirect costs may be mitigated. The Commission also requests comment concerning the extent to which a DCO's analysis of whether the costs of being a Subpart C DCO may outweigh the benefits could be affected by the possibility that some of the costs may be incurred indirectly by clearing members and their customers.
In addition to the requests for comment set forth above, the Commission requests comment concerning the costs associated with the Subpart C Election Form, including without limitation, the election and
The Commission notes that pursuant to proposed paragraph (e), a Subpart C DCO would be permitted, subject to a 90 day notice period, to rescind its election to become subject to the provisions of Subpart C. As a result of the rescission, the DCO would no longer be considered a QCCP, which would likely create important costs for bank clearing members and the bank customers of a DCO's clearing members due to the higher capital costs that they would incur as a result of clearing transactions through the DCO that is no longer a QCCP.
As discussed in section II.C., above, the Commission requests comments on the potential costs to a Subpart C DCO to comply with all aspects of proposed regulation 39.32, including the cost of the opting-in process (including but not limited to the completion of the Subpart C Election Form) and the process for rescinding such an opting-in (including the notices required) and any costs that would be imposed on other market participants or the financial system more broadly.
As discussed above, proposed regulation 39.32 establishes governance requirements for SIDCOs and Subpart C DCOs that are consistent with the PFMIs and establish rules and procedures concerning conflicts of interest, compensation policies, organizational structure, and fitness standards for directors and officers.
To the extent these requirements affect the behavior of a DCO, costs could arise from additional hours a DCO's employees might need to spend analyzing the compliance of the DCO's rules and procedures with these requirements, designing and drafting new or amended rules and procedures where the analysis indicates that these are necessary, and implementing these new or amended rules and procedures. These costs are difficult for the Commission to assess in the abstract because the proposed regulation grants a DCO a certain amount of discretion in determining which rules and procedures should be adopted to comply with the proposed regulation. As discussed in section II.D., above, the Commission requests comments on the potential costs to a SIDCO or Subpart C DCO to comply with all aspects of proposed regulation 39.32, and any costs that would be imposed on other market participants or the financial system more broadly. As noted above, the Commission specifically requests comment on alternative means to establish governance requirements consistent with the PFMIs, and the costs (or cost savings) associated with such alternatives.
As discussed above, proposed amended regulation 39.33(a) would require a Subpart C DCO to comply with the Cover Two minimum financial resource standard for all of its activities if the Subpart C DCO: (1) Is involved in activities with a more complex risk profile or (2) is systemically important in multiple jurisdictions. This requirement currently applies to all SIDCOs.
The cost of the Cover Two requirement for a Subpart C DCO that meets either or both of the two criteria described above
Proposed amended regulation 39.33(b) would prohibit SIDCOs and Subpart C DCOs from including assessments as part of their calculation of the financial resources available to cover the default of the clearing member creating the largest credit exposure and, where applicable, the default of the two clearing members creating the largest aggregate credit exposure, in extreme but plausible circumstances,
Proposed regulation 39.33(c) would require a SIDCO and a Subpart C DCO to maintain eligible liquidity resources that will enable it to meet its intraday, same-day and multiday settlement obligations, in all relevant currencies, with a high degree of confidence under a wide range of stress scenarios notwithstanding a default by the clearing member creating the largest aggregate liquidity obligation. Eligible resources are limited to cash in the currency of the requisite obligation, held at the central bank of issue or a creditworthy commercial bank, certain highly marketable collateral, subject to certain prearranged and highly reliable funding arrangements, and various committed liquidity arrangements. These arrangements must be reliable and enforceable in extreme but plausible market conditions, and must not contain material adverse change clauses.
In addition, a SIDCO or Subpart C DCO that is systemically important in multiple jurisdictions or that is involved in activities with a more complex risk profile would be required to consider maintaining liquidity resources that would enable it to meet the default of the two clearing members creating the largest aggregate payment obligation. If a SIDCO or Subpart C DCO maintains liquid financial resources in addition to those required to satisfy the minimum financial resources requirement set forth in regulations 39.11(a)(1) and 39.33(a), then those resources should be in the form of assets that are likely to be saleable or acceptable as collateral for lines of credit, swaps, or repurchase agreements on an
Proposed regulation 39.33(d) would impose a duty on SIDCOs and Subpart C DCOs to perform due diligence on their liquidity providers in order to determine their ability to perform reliably their commitments to provide liquidity. Finally, proposed regulation 39.33(e) would require SIDCOs and Subpart C DCOs to document their supporting rationale for the amount of financial resources they maintain pursuant to proposed regulation 39.33(a) and the amount of liquidity resources they maintain pursuant to proposed regulation 39.33(c).
Proposed regulations 39.33(c)-(e) may result in additional costs for a SIDCO or Subpart C DCO with respect to analyzing and measuring intra-day, same-day, and multiday liquidity requirements in all relevant currencies, developing plans to meet those requirements, obtaining eligible liquidity resources and making eligible liquidity arrangements, reviewing and monitoring each liquidity provider's risks and reliability (including through periodic testing of access to liquidity), and documenting the DCO's basis for conclusions with respect to its financial resources and liquidity resources requirements. These proposed regulations also will require stress testing and other analysis of such resources as compared with the DCO's liquidity needs. Specifically, with regards to proposed regulation 39.33(c), there may be costs involved in obtaining cash in the relevant currencies or arranging for qualifying liquidity commitments, such as a committed line of credit, to satisfy the minimum financial resources requirement set forth in regulation 39.11(a)(1)(
Proposed regulation 39.33(d) may increase administrative costs to the extent that a SIDCO or a Subpart C DCO is required to review and monitor its liquidity provider's capacity and reliability to perform its liquidity obligations to the DCO. In addition, proposed regulation 39.33(e) may impose an administrative cost to document the SIDCO or Subpart C DCO's rationale for the financial resources it maintains.
As discussed in section II.E., above, the Commission requests comments on the potential costs to a SIDCO or a Subpart C DCO in complying with all aspects of proposed regulation 39.33 and any costs that would be imposed on other market participants or the financial system more broadly. As noted above, the Commission specifically
As discussed above, proposed amended regulation 39.34 would require SIDCOs and Subpart C DCOs to comply with enhanced system safeguards requirements.
Proposed regulation 39.35 would require SIDCOs and Subpart C DCOs to adopt policies and procedures to address certain issues arising from extraordinary stress events, including the default of one or more clearing members.
Proposed regulation 39.36 would impose enhanced risk management requirements for a SIDCO or Subpart C DCO, including, but not limited to, specific criteria for stress tests of financial resources, specific criteria for sensitivity analysis of margin models, specific criteria for stress tests of liquidity resources, requirements surrounding the monitoring and management of credit and liquidity risks arising out of settlement banks, and requirements surrounding the custody and investment of a SIDCO's or Subpart C DCO's own funds and assets.
Proposed regulation 39.37 would set forth additional public disclosure requirements for a SIDCO and Subpart C DCO, including the disclosure of, and updates to, the DCO's responses to the Disclosure Framework for FMIs.
Proposed regulation 39.38 would require a SIDCO or a Subpart C DCO to comply with certain efficiency standards regarding its clearing and settlement arrangements, operating structure and procedures, product scope, and use of technology. In addition, a SIDCO or Subpart C DCO would be required to establish clearly defined goals and objectives that are measureable and achievable, including minimum service levels, risk management expectations, and business priorities.
Proposed regulation 39.37 would require a SIDCO or Subpart C DCO to maintain viable plans for recovery and orderly wind-down, in cases necessitated by (1) credit losses or liquidity shortfalls and (2) general business risk, operational risk, or any other risk that threatens the DCO's viability as a going concern. This would require the DCO to identify scenarios that may prevent a SIDCO or Subpart C DCO from being able to provide its critical operations and services as a going concern and to assess the effectiveness of a full range of options for recovery or orderly wind-down.
The proposed regulation would also require a SIDCO or Subpart C DCO to evaluate the resources available to meet the plan to cover credit losses and liquidity shortfalls, and to maintain sufficient unencumbered liquid financial assets to implement the plan to cover other risks. The latter point requires a SIDCO or Subpart C DCO to analyze whether its particular circumstances and risks require it to maintain liquid net assets to fund the plan that are in addition to those resources currently required by regulation 39.11(a)(2).
This proposed regulation may impose costs on a SIDCO or Subpart C DCO to the extent it will be necessary to undertake a comprehensive qualitative and quantitative analysis of the credit, liquidity, general business, operational and other risks that may threaten the DCO's ability to provide its critical operations and services as a going concern, to design and draft plans to mitigate and address those risks, to analyze whether the DCO's resources allocated to recovery and/or wind-down are sufficient to implement those plans. This analysis may lead to the design of alternative and/or additional scenarios to be included in stress testing, the drafting of new or revised policies for a recovery and/or wind-down plan, and potentially the necessity of maintaining additional resources or procedures to obtain such resources in the event they are needed. Moreover, the regulation prohibits the double counting of available resources—that is, resources considered as available to meet the recovery and orderly wind-down plan for credit losses and liquidity shortfalls cannot be considered as available to meet the recovery and orderly wind-down plan for general business risk, operational risk, and other risks (or vice-versa). This may result in the need to maintain a larger quantum of total resources to meet both plans which, depending on the resources maintained, may involve costs arising from factors such as greater use of capital by the DCO, or greater capital charges for clearing members arising out of their commitments to contribute default resources.
As discussed in section II.K. above, the Commission requests comments on the potential costs to a SIDCO or a Subpart C DCO in complying with all aspects of proposed regulation 39.39, and any costs that would be imposed on other market participants or the financial system more broadly. As noted above, the Commission specifically requests comment on alternative means to establish, consistent with the PFMIs, a requirement for the adoption of a recovery and wind-down plan, and the costs (or cost savings) associated with such alternatives.
As explained in the subsections that follow, this proposed rule would hold SIDCOs and Subpart C DCOs to enhanced regulatory standards, which are designed to promote the financial strength, operational integrity, security, and reliability of these organizations and to reduce the likelihood of their disruption or failure. This would then increase the overall stability of the U.S. financial markets. As the PFMIs note, FMIs, including CCPs (
In addition, the proposed regulations would help ensure that SIDCOs and Subpart C DCOs are held to international standards in order to provide them with the opportunity to gain QCCP status. As discussed above, attaining QCCP status would provide clearing members that are banks, as well as banks that are customers of clearing members, with the benefit of complying with less onerous capital requirements, pursuant to the Basel CCP Capital Requirements, than if the SIDCO or
The procedures set forth in proposed regulation 39.31, together with the proposed Subpart C Election Form, are intended to promote the protection of market participants and the public. These proposed procedures would require the Commission's staff to conduct a comprehensive and thorough review of a DCO that elects to become subject to the provisions of Subpart C. In addition, the international Basel CCP Capital Requirements provide incentives for banks to clear derivatives through CCPs that are qualified CCPs or “QCCPs” by setting lower capital charges for exposures arising from derivatives cleared through a QCCP and setting significantly higher capital charges for exposures arising from derivatives cleared through non-qualifying CCPs. These proposed regulations are consistent with the international standards set forth in the PFMIs and address the remaining divergences between part 39 of the Commission's regulations and the PFMIs, which will provide an opportunity for a Subpart C DCO to gain QCCP status.
Without regulation 39.31, a DCO that is not designated by the Council as being systemically important would not have the opportunity to gain QCCP status, thereby potentially putting such a DCO at a significant competitive disadvantage compared to SIDCOs and non-U.S. clearing organizations. This would ultimately be to the detriment of such a DCO's clearing members and their customers.
Proposed regulation 39.31 would provide a benefit to a Subpart C DCO by allowing the Subpart C DCO to weigh for itself the costs and benefits of maintaining QCCP status. The notice requirements would provide important benefits to clearing members of the rescinding Subpart C DCO (and their customers), particularly those that are banks or bank affiliates, by providing them with advance notice to permit them to assess their options and take any actions they deem appropriate with respect to clearing at a DCO that has acted to rescind its election to be held to the standards of Subpart C (and thus to renounce status as a QCCP).
In addition to the requests for comments detailed above, the Commission invites public comment on its cost-benefit considerations. Specifically, the Commission seeks comment, including quantitative data, if available, concerning the costs and benefits associated with having an opt-in process for DCOs that have not been designated as systemically important by the Council to elect to be subject to Subpart C, the proposed process for that election, and the costs and benefits that may be incurred and realized by the clearing members and customers of a Subpart C DCO that rescinds its election to become subject to the provisions of Subpart C. In addition, the Commission seeks comment on whether the notice requirements, the 90 day notice period and the requirements set forth in proposed regulation 39.31(e)(3)(iii) are sufficient to mitigate the costs associated with a Subpart C DCO's ability to rescind its election. Commenters are also invited to submit with their comment letters any data or other information that they may have quantifying or qualifying the costs and benefits of the proposed regulations.
The requirements set forth in proposed regulation 39.32 would appear to be beneficial to the extent that they cause a SIDCO or Subpart C DCO to internalize and/or more appropriately allocate certain costs that would otherwise be borne by clearing members, customers of clearing members, and other relevant stakeholders. Such requirements would also appear to promote market stability because the governance arrangements of SIDCOs and Subpart C DCOs would be required to explicitly support the stability of the financial system and other relevant public interest considerations of clearing members, customers of clearing members, and other relevant stakeholders,
As discussed in section II.D. above, the Commission requests comments on the potential benefits to a SIDCO and a Subpart C DCO in complying with all aspects of proposed regulation 39.32, and any benefits that would be realized by other market participants (including members of such a DCO and their customers) or the financial system more broadly. As noted above, the Commission specifically requests comment on alternative means to address these issues, and the benefits associated with such alternatives.
As described above, proposed regulation 39.33(a), as revised, would be expanded to include Subpart C DCOs and require those Subpart C DCOs that engage in an activity with a more complex risk profile (
As described above, proposed regulation 39.33(a)(2) would provide the Commission with the ability to determine that a SIDCO or a Subpart C DCO is systemically important in multiple jurisdictions, considering whether the DCO is a SIDCO and whether the DCO has been determined to be systemically important by one or more foreign jurisdictions pursuant to a designation process that considers whether the foreseeable effects of a failure or disruption of the SIDCO or Subpart C DCO could threaten the stability of each relevant jurisdiction's financial system. Moreover, proposed regulation 39.33(a)(3) would provide the Commission with the ability to expand the definition of “activity with a more complex risk profile” beyond clearing credit default swaps or credit default futures. These provisions give the Commission the flexibility to determine, under appropriate circumstances, what particular SIDCOs or Subpart C DCOs (or DCOs that engage in certain activities) would need to maintain Cover Two default resources. Such a decision would help to ensure that the affected SIDCO or Subpart C DCO would have greater financial resources to meet its obligations to market participants, including in the case of defaults by multiple clearing members. These added financial resources would decrease the likelihood that the SIDCO or Subpart C DCO would fail, thus contributing to the integrity and stability of the financial markets.
Proposed regulation 39.33 would also prohibit a Subpart C DCO from using assessments to meets its default resource obligations,
Assessment powers are more likely to be exercised during periods of financial market stress. If, during such a period, a clearing member defaults and the loss to the Subpart C DCO is sufficiently large to deplete (1) the collateral posted by the defaulting clearing member, (2) the defaulting clearing member's guaranty fund contribution, and (3) the remaining pre-funded default fund contributions, a Subpart C DCO's exercise of assessment powers over the non-defaulting clearing members may exacerbate a presumably already weakened financial market. The demand by a Subpart C DCO for more capital from its clearing members could force one or more additional clearing members into default because they cannot meet the assessment. The inability to meet the assessment could lead clearing members and/or their customers to de-leverage (
The increase in prefunding of financial resources by a Subpart C DCO may increase costs to clearing members of that Subpart C DCO (
As described above, proposed regulation 39.33(c) would require a SIDCO or Subpart C DCO to maintain a minimum level of eligible liquidity resources that would permit the DCO to satisfy its intraday, same-day, and multi-day settlement obligations in all relevant currencies. Proposed regulation 39.33(d) would require a SIDCO or Subpart C DCO to undertake due diligence to confirm that each liquidity provider upon which the DCO relies has the capacity to perform its commitments to provide liquidity (and to regularly test its own procedures for accessing its liquidity resources) and would require a SIDCO with access to accounts and services at a Federal Reserve Bank to use such services where practical. Proposed regulation 39.33(e) would require a SIDCO or Subpart C DCO to document its supporting rationale for, and to have adequate governance arrangements relating to, the amount of total financial resources it maintains and the amount of total liquidity resources it maintains.
These requirements would increase the likelihood that a SIDCO or Subpart C DCO would promptly meet its settlement obligations in a variety of market conditions. In determining the resources that would be necessary to meet the qualifying liquid resources requirements, a SIDCO or Subpart C DCO may need to undertake a complex analysis of the SIDCO's or Subpart C DCO's exposures and processes, including various models, and, where appropriate, designing and implementing changes to either create or modify existing internal processes and documenting the rationale for the amount of total financial and total liquidity resources the SIDCO or Subpart C DCO maintains. These efforts are likely to contribute to a better
The result of this analysis and these enhanced resources is likely to be better preparation to meet liquidity challenges promptly, and a greater likelihood that the DCO would efficiently and effectively meet its obligations promptly in a default scenario. This improved preparation and enhanced likelihood of the SIDCO or Subpart C DCO's prompt meeting of its own obligations will benefit the DCO's clearing members and
As discussed in section II.E. above, the Commission requests comments on the potential benefits to a SIDCO or a Subpart C DCO in complying with all aspects of proposed regulation 39.33, and any benefits that would be realized by other market participants or the financial system more broadly. As noted above, the Commission specifically requests comment on alternative means to address these issues, and the benefits associated with such alternatives.
As discussed above, proposed amended regulation 39.34 would require SIDCOs and Subpart C DCOs to comply with enhanced system safeguards requirements.
As discussed in section II.F. above, the Commission requests comments on the potential benefits to a SIDCO or a Subpart C DCO in complying with all aspects of proposed regulation 39.34, and any benefits that would be realized by other market participants or the financial system more broadly. As noted above, the Commission specifically requests comment on alternative means to address these issues, and the benefits associated with such alternatives.
As discussed above, proposed regulation 39.35 would require SIDCOs and Subpart C DCOs to adopt explicit rules and procedures for: (i) Allocating uncovered credit losses and (ii) meeting all settlement obligations in a variety of market conditions.
As discussed in section II.G. above, the Commission requests comments on the potential benefits to a SIDCO or a Subpart C DCO in complying with all aspects of proposed regulation 39.35, and any benefits that would be realized by other market participants or the financial system more broadly. As noted above, the Commission specifically requests comment on alternative means to address these issues, and the benefits associated with such alternatives.
As discussed above, the enhanced risk management requirements set forth in proposed regulation 39.36 are designed to help SIDCOs and Subpart C DCOs manage their risk exposure.
As discussed in section II.H. above, the Commission requests comments on the potential benefits to a SIDCO or a Subpart C DCO in complying with all aspects of proposed regulation 39.36, and any benefits that would be realized by members of such DCOs and their customers, as well as other market participants or the financial system more broadly. As noted above, the Commission specifically requests comment on alternative means to address these issues, and the benefits associated with such alternatives.
The disclosure requirements set forth in proposed regulation 39.37
As discussed in section II.I. above, the Commission requests comments on the potential benefits to a SIDCO or a Subpart C DCO in complying with all aspects of proposed regulation 39.37, and any benefits that would be realized by members of such DCOs and their customers, as well as other market participants or the financial system more broadly. As noted above, the Commission specifically requests comment on alternative means to address these issues, and the benefits associated with such alternatives.
The efficiency requirements set forth in proposed regulation 39.38 would be beneficial to clearing members of SIDCOs and Subpart C DCOs, as well as to customers of clearing members, because they would require these DCOs to regularly endeavor to improve their clearing and settlement arrangements, operating structures and procedures, product offerings, and use of technology. In addition, SIDCOs and Subpart C DCOs would be required to facilitate efficient payment, clearing and settlement by accommodating internationally accepted communication procedures and standards, which could result in operational efficiency for market participants. As a result, members of such DCOs and their customers, as well as the marketplace more broadly, may be offered more efficient clearing services that may be easier to access at an operational level.
As discussed in section II.J. above, the Commission requests comments on the potential benefits to a SIDCO or a Subpart C DCO in complying with all aspects of proposed regulation 39.38, and any benefits that would be realized by members of such DCOs, their customers, as well as other market participants or the financial system more broadly. As noted above, the Commission specifically requests comment on alternative means to address these issues, and the benefits associated with such alternatives.
As discussed above, proposed regulation 39.39 would require a SIDCO and Subpart C DCO to maintain viable plans for recovery and orderly wind-down, in cases necessitated by (1) credit losses or liquidity shortfalls and (2) general business risk, operational risk, or any other risk that threatens the derivatives clearing organization's viability as a going concern. This would require the DCO to identify scenarios that may prevent a SIDCO or Subpart C DCO from being able to provide its critical operations and services as a going concern and to assess the effectiveness of a full range of options for recovery or orderly wind-down.
The proposed regulation would also require a SIDCO or Subpart C DCO to evaluate the resources available to meet the plan to cover credit losses and liquidity shortfalls, and to maintain sufficient unencumbered liquid financial assets to implement the plan to cover other risks. The latter point requires a SIDCO or Subpart C DCO to analyze whether its particular circumstances and risks require it to maintain liquid net assets to fund the plan that are in addition to those resources currently required by regulation 39.11(a)(2).
The complex analysis and plan preparation that a SIDCO or Subpart C DCO would undertake to comply with the proposed regulation, including designing and implementing changes to existing plans, are likely to contribute to a better
As discussed in section II.K. above, the Commission requests comments on the potential benefits to a SIDCO or a Subpart C DCO in complying with all aspects of proposed regulation 39.39, and any benefits that would be realized by members of such DCOs and their customers, as well as other market participants or the financial system more broadly. As noted above, the Commission specifically requests comment on alternative means to address these issues, and the benefits associated with such alternatives.
The proposed regulations create additional standards for compliance with the CEA, which include governance standards, enhanced financial resources and liquidity resource requirements, system safeguard requirements, special default rules and procedures for uncovered losses or shortfalls, enhanced risk management requirements, additional disclosure requirements, efficiency standards, and standards for recovery and wind-down procedures. They also include procedures for Subpart C DCOs to elect to be held to such additional standards, and procedures to rescind such election. These standards and procedures would further the protection of members of SIDCOs and Subpart C DCOs, customers of such members, as well as other market participants and the public by increasing the financial stability and operational security of SIDCOs and Subpart C DCOs. These proposed regulations could, more broadly, increase the stability of the U.S.
The costs of this rulemaking would be mitigated by the countervailing benefits of stronger resources, improved design, more efficient and effective processes, and enhanced planning that would lead to increased safety and soundness of SIDCOs and the reduction of systemic risk, which protect market participants and the public from the adverse consequences that would result from a SIDCO's failure or a disruption in its functioning. Similarly, the proposed regulations would increase the safety and soundness of Subpart C DCOs so that they may continue to operate even in extreme circumstances, which would, in turn, better protect members of such DCOs, their customers, and also market participants and the public, particularly during time of severe market stress.
The regulations set forth in this proposed rulemaking would promote the financial strength and stability of SIDCOs and Subpart C DCOs, as well as, more broadly, efficiency and greater competition in the global markets. Proposed regulation 39.38 expressly promotes efficiency in the design of a SIDCO's or Subpart C DCO's settlement and clearing arrangements, operating structure and procedures, scope of products cleared, and use of technology. The proposed regulation also requires SIDCOs and Subpart C DCOs to accommodate internationally accepted communication procedures and standards to facilitate efficient payment, clearing, and settlement. In addition, the proposed regulations promote efficiency insofar as SIDCOs and Subpart C DCOs that operate with enhanced financial and liquidity resources, enhanced risk management requirements, increased system safeguards, and wind-down or recovery plans are more secure and are less likely to fail.
The proposed regulations would also promote competition because they are consistent with the international standards set forth in the PFMIs and will help to ensure that SIDCOs are held to international standards and thus are enabled to gain QCCP status and accordingly avoid an important competitive disadvantage relative to similarly situated foreign CCPs that meet international standards and are QCCPs. Moreover, by allowing other DCOs to elect to become subject to the provisions of Subpart C and thus the opportunity to meet international standards and to gain QCCP status, the proposed regulations promote competition among registered DCOs, and between registered DCOs and foreign CCPs that meet international standards and are QCCPs. Conversely, the Commission notes that these enhanced financial resources and risk management standards are also associated with additional costs and to the extent that SIDCOs and Subpart C DCOs pass along the additional costs to their clearing members and, indirectly, those clearing members' customers, participation in the affected markets may decrease and have a negative impact on price discovery. However, it would appear that such higher transactional costs should be offset by the lower capital charges granted to clearing members and customers for exposures resulting from transactions that are cleared through SIDCOs and Subpart C DCOs that are also QCCPs.
Additionally, enhanced risk management and operational standards would promote financial integrity by leading to SIDCOs and Subpart C DCOs to be more secure and less likely to fail. By increasing the stability and strength of the SIDCOs and Subpart C DCOs, the proposed regulations would help SIDCOs and Subpart C DCOs to meet their obligations in extreme circumstances and be able to resume operations even in the face of wide-scale disruption, which contributes to the financial integrity of the financial markets. Moreover, in requiring (1) more financial resources to be pre-funded by expanding the potential losses those resources are intended to cover and restricting the means for satisfying those resource requirements, and (2) requiring greater liquidity resources, the requirements of these proposed regulations seek to lessen the incidence of pro-cyclical demands for additional resources and, in so doing, promote both financial integrity and market stability. These efforts would redound to the benefit of clearing members and their customers, as well as the financial system more broadly.
The regulations in this proposed rulemaking would enhance financial resources, liquidity resources, risk management standards, disclosure standards, and recovery planning for SIDCOs and Subpart C DCOs which may result in increased public confidence, which, in turn, might lead to expanded participation in the affected markets (including markets with products with a more complex risk profile). The expanded participation in these markets (
The regulations in this proposed rulemaking contribute to the sound risk management practices of SIDCOs and Subpart C DCOs because the requirements would promote the safety and soundness of SIDCOs and Subpart C DCOs by: (1) Enhancing the financial resources requirements and liquidity resource requirements; (2) enhancing understanding of credit and liquidity risks and related governance arrangements; (3) enhancing system safeguards to facilitate the continuous operation and rapid recovery of activities;
The Commission notes the strong public interest for jurisdictions to either adopt the PFMIs or establish standards consistent with the PFMIs in order to allow CCPs licensed in the relevant jurisdiction to gain QCCP status. As emphasized throughout this proposed rulemaking, SIDCOs and Subpart C DCOs that are held to international standards and that gain QCCP status might hold a competitive advantage in the financial markets by,
Commodity futures, Risk management, Settlement procedures, Default rules and procedures, System safeguards.
For the reasons stated in the preamble, the Commission proposes to amend 17 CFR part 39 as follows:
7 U.S.C. 2, 7a–1, and 12a; 12 U.S.C. 5464; 15 U.S.C. 8325.
For the purposes of this part:
(1) Clearing credit default swaps, credit default futures, or derivatives that reference either credit default swaps or credit default futures and
(2) Any other activity designated as such by the Commission pursuant to § 39.33(a)(3).
(1) Is registered as a derivatives clearing organization under section 5b of the Act;
(2) Is not a systemically important derivatives clearing organization; and
(3) Has become subject to the provisions of this Subpart C, pursuant to § 39.31.
(a) The provisions of this subpart C apply to each of the following: A subpart C derivatives clearing organization, a systemically important derivatives clearing organization, and any derivatives clearing organization, as defined under section 1a(15) of the Act and § 1.3(d) of this chapter, seeking to become a subpart C derivatives clearing organization pursuant to § 39.31.
(b) A systemically important derivatives clearing organization is subject to the provisions of subparts A and B of this part in addition to the provisions of this subpart.
(c) A subpart C derivatives clearing organization is subject to the provisions of subparts A and B of this part in addition to the provisions of this subpart except for §§ 39.41 and 39.42 of this subpart.
(a)
(2) An applicant for registration as a derivatives clearing organization pursuant to § 39.3 may elect to become a subpart C derivatives clearing organization subject to the provisions of this subpart as part of its application for registration using the procedures set forth in paragraph (c) of this section.
(b)
(2) Submission of supplemental information. The filing of a Subpart C Election Form does not create a presumption that the Subpart C Election Form is materially complete or that supplemental information will not be required. The Commission, at any time prior to the effective date, as provided in paragraph (b)(4) of this section, may request that the derivatives clearing organization submit supplemental information in order for the Commission to process the Subpart C Election Form, and the derivatives clearing organization shall file such supplemental information with the Commission.
(3) Amendments. A derivatives clearing organization shall promptly amend its Subpart C Election Form if it discovers a material omission or error in, or if there is a material change in, the information provided to the Commission in the Subpart C Election Form or other information provided in connection with the Subpart C Election Form.
(4) Effective date. A derivatives clearing organization's election to become a subpart C derivatives clearing organization shall become effective:
(i) Upon the later of the following, provided the Commission has neither stayed nor denied such election as set forth in paragraph (b)(5) of this section.
(A) The effective date specified by the derivatives clearing organization in its Subpart C Election Form; or
(B) Ten business days after the derivatives clearing organization files its Subpart C Election Form with the Commission;
(ii) Or upon the effective date set forth in written notification from the Commission that it shall permit the election to take effect after a stay issued pursuant to paragraph (b)(5) of this section.
(5) Stay or denial of election. Prior to the effective date set forth in paragraph (b)(4)(i) of this section, the Commission may stay or deny a derivatives clearing organization's election to become a subpart C derivatives clearing organization by issuing a written notification thereof to the derivatives clearing organization.
(6) Commission acknowledgement. The Commission may acknowledge, in writing, that it has received a Subpart C Election Form filed by a derivatives clearing organization and that it has permitted the derivatives clearing organization's election to become subject to the provisions of this subpart C to take effect, and the effective date of such election.
(7) Withdrawal of election. A derivatives clearing organization that has filed a Subpart C Election Form may withdraw an election to become subject to the provisions of this subpart C at any time prior to the date that the election is permitted to take effect by filing with the Commission a notice of the withdrawal of election.
(c)
(2) Election review and effective date. The Commission shall review the applicant's Subpart C Election Form as part of the Commission's review of its
(3) Submission of supplemental information. The filing of a Subpart C Election Form does not create a presumption that the Subpart C Election Form is materially complete or that supplemental information will not be required. At any time during the Commission's review of the Subpart C Election Form, the Commission may request that the applicant submit supplemental information in order for the Commission to process the Subpart C Election Form and the applicant shall file such supplemental information with the Commission.
(4) Amendments. An applicant for registration as a derivatives clearing organization shall promptly amend its Subpart C Election Form if it discovers a material omission or error in, or if there is a material change in, the information provided to the Commission in the Subpart C Election Form or other information provided in connection with the Subpart C Election Form.
(5) Withdrawal of election. An applicant for registration as a derivatives clearing organization may withdraw an election to become subject to the provisions of this subpart C by filing with the Commission a notice of the withdrawal of its Subpart C Election Form at any time prior to the date that the Commission approves its application for registration as a derivatives clearing organization. The applicant may withdraw its Subpart C Election Form without withdrawing its Form DCO.
(d)
(e)
(i) The effective date of the rescission; and
(ii) A certification signed by the relevant duly authorized representative of the subpart C derivatives clearing organization, as specified in paragraph three of the General Instructions to the Subpart C Election Form, stating that the subpart C derivatives clearing organization:
(A) Has provided the notice to its clearing members required by paragraph (e)(3)(i)(A) of this section;
(B) Will provide the notice to its clearing members required by paragraph (e)(3)(i)(B) of this section;
(C) Has provided the notice to the general public required by paragraph (e)(3)(ii)(A) of this section;
(D) Will provide notice to the general public required by paragraph (e)(3)(ii)(B) of this section; and
(E) Has removed all references to the organization as a subpart C derivatives clearing organization and a qualifying central counterparty on its Web site and in all other material that it provides to its clearing members and customers, other market participants or members of the public, as required by paragraph (e)(3)(ii)(C) of this section.
(2) Effective date. The rescission of the election to be subject to the provisions of this subpart C shall become effective on the date set forth in the notice of intent to rescind the election filed by the subpart C derivatives clearing organization pursuant to § 39.31(e)(1), provided that the rescission may become effective no earlier than 90 days after the notice of intent to rescind the election is filed with the Commission. The subpart C derivatives clearing organization shall continue to comply with all of the provisions of this subpart C until such effective date.
(3) Additional notice requirements.
(i) A subpart C derivatives clearing organization shall provide the following notices, at the following times, to each of its clearing members and shall have rules in place requiring each of its clearing members to provide the following notices to each of the clearing member's customers:
(A) No later than the filing of a notice of its intent to rescind its election to be subject to the provisions of this subpart C, written notice that it intends to file such notice with the Commission and the effective date thereof; and
(B) On the effective date of the rescission of its election to be subject to the provisions of this subpart C, written notice that the rescission has become effective.
(ii) A subpart C derivatives clearing organization shall:
(A) No later than the filing of a notice of its intent to rescind its election to be subject to the provisions of this subpart C, provide notice to the general public, displayed prominently on its Web site, of its intent to rescind its election to be subject to the provisions of this subpart C;
(B) On and after the effective date of the rescission of its election to be subject to the provisions of this subpart C, provide notice to the general public, displayed prominently on its Web site, that the rescission has become effective; and
(C) Prior to the filing of a notice of its intent to rescind its election to become subject to the provisions of this subpart C, remove all references to the derivatives clearing organization's status as a subpart C derivatives clearing organization and a qualifying central counterparty on its Web site and in all other materials that it provides to its clearing members and customers, other market participants, or the general public.
(iii) The employees and representatives of a derivatives clearing organization that has filed a notice of its intent to rescind its election to be subject to the provisions of this subpart C shall refrain from referring to the organization as a subpart C derivatives clearing organization and a qualifying central counterparty on and after the date that the notice of intent to rescind the election is filed.
(4) Effect of rescission. The rescission of a subpart C derivatives clearing organization's election to be subject to the provisions of this subpart C shall not affect the authority of the Commission concerning any activities or events occurring during the time that the derivatives clearing organization maintained its status as a subpart C derivatives clearing organization.
(f)
(g) All forms and notices required by this § 39.31 shall be filed electronically with the Secretary of the Commission in the format and manner specified by the Commission.
(a)
(i) Are written;
(ii) Are clear and transparent;
(iii) Place a high priority on the safety and efficiency of the systemically important derivatives clearing organization or subpart C derivatives clearing organization; and
(iv) Explicitly support the stability of the broader financial system and other relevant public interest considerations of clearing members, customers of clearing members, and other relevant stakeholders.
(2) The board of directors shall make certain that the systemically important derivatives clearing organization's or subpart C derivatives clearing organization's design, rules, overall strategy, and major decisions appropriately reflect the legitimate interests of clearing members, customers of clearing members, and other relevant stakeholders.
(3) To an extent consistent with other statutory and regulatory requirements on confidentiality and disclosure:
(i) Major decisions of the board of directors should be clearly disclosed to clearing members, other relevant stakeholders, and to the Commission; and
(ii) Major decisions of the board of directors having a broad market impact should be clearly disclosed to the public;
(b)
(1) Are clear and documented;
(2) To an extent consistent with other statutory and regulatory requirements on confidentiality and disclosure, are disclosed, as appropriate, to the Commission and to other relevant authorities, to clearing members and to customers of clearing members, to the owners of the systemically important derivatives clearing organization or subpart C derivatives clearing organization, and to the public;
(3) Describe the structure pursuant to which the board of directors, committees, and management operate;
(4) Include clear and direct lines of responsibility and accountability;
(5) Clearly specify the roles and responsibilities of the board of directors and its committees, including the establishment of a clear and documented risk management framework;
(6) Clearly specify the roles and responsibilities of management;
(7) Describe procedures for identifying, addressing, and managing conflicts of interest involving members of the board of directors;
(8) Describe procedures pursuant to which the board of directors oversees the chief risk officer, risk management committee, and material risk decisions;
(9) Assign responsibility and accountability for risk decisions, including in crises and emergencies; and
(10) Assign responsibility for implementing the:
(i) Default rules and procedures required by §§ 39.16 and 39.35;
(ii) System safeguard rules and procedures required by §§ 39.18 and 39.34; and
(iii) Recovery and wind-down plans required by § 39.39.
(c)
(1) The board of directors consists of suitable individuals having appropriate skills and incentives;
(2) The board of directors includes individuals who are not executives, officers or employees of the systemically important derivatives clearing organization or subpart C derivatives clearing organization or an affiliate thereof;
(3) The performance of the board of directors and the performance of individual directors are reviewed on a regular basis;
(4) Managers have the appropriate experience, skills, and integrity necessary to discharge operational and risk management responsibilities; and
(5) Risk management and internal control personnel have sufficient independence, authority, resources, and access to the board of directors so that the operations of the systemically important derivatives clearing organization or subpart C derivatives clearing organization are consistent with the risk management framework established by the board of directors.
(a)
(2) The Commission shall, if it deems appropriate, determine whether a systemically important derivatives clearing organization or subpart C derivatives clearing organization is systemically important in multiple jurisdictions. In determining whether a systemically important derivatives clearing organization or subpart C derivatives clearing organization is systemically important in multiple jurisdictions, the Commission shall consider whether the derivatives clearing organization:
(i) Is a systemically important derivatives clearing organization, as defined by § 39.2; or
(ii) Has been determined to be systemically important by one or more jurisdictions other than the United States pursuant to a designation process that considers whether the foreseeable effects of a failure or disruption of the derivatives clearing organization could threaten the stability of each relevant jurisdiction's financial system.
(3) The Commission shall, if it deems appropriate, determine whether any of the activities of a systemically important derivatives clearing organization or a subpart C derivatives clearing organization, in addition to clearing credit default swaps, credit default futures, and any derivatives that reference either credit default swaps or credit default futures, has a more complex risk profile. In determining whether an activity has a more complex risk profile, the Commission will consider characteristics such as discrete jump-to-default price changes or high correlations with potential participant defaults as factors supporting (though
(4) For purposes of this section 39.33, if a clearing member controls another clearing member or is under common control with another clearing member, such affiliated clearing members shall be deemed to be a single clearing member.
(b)
(c)
(i) Notwithstanding the provisions of § 39.11(e)(1)(ii), each systemically important derivatives clearing organization and subpart C derivatives clearing organization shall maintain eligible liquidity resources that, at a minimum, will enable it to meet its intraday, same-day, and multiday obligations to perform settlements, as defined in § 39.14(a)(1), with a high degree of confidence under a wide range of stress scenarios that should include, but not be limited to, a default by the clearing member creating the largest aggregate liquidity obligation for the systemically important derivatives clearing organization or subpart C derivatives clearing organization in extreme but plausible market conditions.
(ii) A systemically important derivatives clearing organization and subpart C derivatives clearing organization that is subject to § 39.33(a)(1) shall consider maintaining eligible liquidity resources that, at a minimum, will enable it to meet its intraday, same-day, and multiday obligations to perform settlements, as defined in § 39.14(a)(1), with a high degree of confidence under a wide range of stress scenarios that should include, but not be limited to, a default of the two clearing members creating the largest aggregate liquidity obligation for the systemically important derivatives clearing organization or subpart C derivatives clearing organization in extreme but plausible market conditions.
(2)
(3)
(A) Cash in the currency of the requisite obligations, held either at the central bank of issue or at a creditworthy commercial bank;
(B) Committed lines of credit;
(C) Committed foreign exchange swaps;
(D) Committed repurchase agreements; or
(E) (
(
(ii) With respect to the arrangements described in paragraph (c)(3)(i) of this section, the systemically important derivatives clearing organization or subpart C derivatives clearing organization must take appropriate steps to verify that such arrangements do not include material adverse change provisions and are enforceable, and will be highly reliable, in extreme but plausible market conditions.
(4)
(d)
(i) A depository institution, a U.S. branch and agency of a foreign banking organization, a trust company, or a syndicate of depository institutions, U.S. branches and agencies of foreign banking organizations, or trust companies providing a line of credit, foreign exchange swap facility or repurchase facility to a systemically important derivatives clearing organization or subpart C derivatives clearing organization;
(ii) Any other counterparty relied upon by a systemically important derivatives clearing organization or subpart C derivatives clearing organization to meet its minimum liquidity resources requirement under paragraph (c) of this section.
(2) In fulfilling its obligations under paragraph (c) of this section, each systemically important derivatives clearing organization and subpart C derivatives clearing organization shall undertake due diligence to confirm that each of its liquidity providers, whether or not such liquidity provider is a clearing member, has:
(i) Sufficient information to understand and manage the liquidity provider's liquidity risks; and
(ii) The capacity to perform as required under its commitments to provide liquidity to the systemically important derivatives clearing organization or subpart C derivatives clearing organization.
(3) Where relevant to a liquidity provider's ability reliably to perform its commitments with respect to a particular currency, the systemically important derivatives clearing organization or subpart C derivatives clearing organization may take into account the liquidity provider's access to the central bank of issue of that currency.
(4) Each systemically important derivatives clearing organization and subpart C derivatives clearing organization shall regularly test its procedures for accessing its liquidity resources under paragraph (c)(3)(i) of this section, including testing its arrangements under paragraph (c)(3)(ii) and its relevant liquidity provider(s) under paragraph (d)(1) of this section.
(5) A systemically important derivatives clearing organization with access to accounts and services at a Federal Reserve Bank, pursuant to section 806(a) of the Dodd-Frank Act, 12 U.S.C. 5465(a), shall use these services, where practical.
(e)
(a) Notwithstanding § 39.18(e)(3), the business continuity and disaster recovery plan described in § 39.18(e)(1) for each systemically important derivatives clearing organization and subpart C derivatives clearing organization shall have the objective of enabling, and the physical, technological, and personnel resources described in § 39.18(e)(1) shall be sufficient to enable, the systemically important derivatives clearing organization or subpart C derivatives clearing organization to recover its operations and resume daily processing, clearing, and settlement no later than two hours following the disruption, for any disruption including a wide-scale disruption.
(b) To facilitate its ability to achieve the recovery time objective specified in paragraph (a) of this section in the event of a wide-scale disruption, each systemically important derivatives clearing organization and subpart C derivatives clearing organization must maintain a degree of geographic dispersal of physical, technological and personnel resources consistent with the following for each activity necessary for the daily processing, clearing, and settlement of existing and new contracts:
(1) Physical and technological resources (including a secondary site), sufficient to enable the entity to meet the recovery time objective after interruption of normal clearing by a wide-scale disruption, must be located outside the relevant area of the physical and technological resources the systemically important derivatives clearing organization or subpart C derivatives clearing organization normally relies upon to conduct that activity, and must not rely on the same critical transportation, telecommunications, power, water, or other critical infrastructure components the entity normally relies upon for such activities;
(2) Personnel, who live and work outside that relevant area, sufficient to enable the entity to meet the recovery time objective after interruption of normal clearing by a wide-scale disruption affecting the relevant area in which the personnel the entity normally relies upon to engage in such activities are located;
(3) The provisions of § 39.18(f) shall apply to these resource requirements.
(c) Each systemically important derivatives clearing organization and subpart C derivatives clearing organization must conduct regular, periodic tests of its business continuity and disaster recovery plans and resources and its capacity to achieve the required recovery time objective in the event of a wide-scale disruption. The provisions of § 39.18(j) apply to such testing.
(d) The Commission may, upon application, grant an entity, which has been designated as a systemically important derivatives clearing organization or that has elected to become subject to subpart C, up to one year to comply with any provision of this section.
(a)
(1) Allocate losses exceeding the financial resources available to the systemically important derivatives clearing organization or subpart C derivatives clearing organization;
(2) Repay any funds it may borrow; and
(3) Replenish any financial resources it may employ during such a stress event, so that the systemically important derivatives clearing organization or subpart C derivatives clearing organization can continue to operate in a safe and sound manner.
(b)
(i) An individual or combined default involving one or more clearing members' obligations to the systemically important derivatives clearing organization or subpart C derivatives clearing organization; or
(ii) A liquidity shortfall exceeding the financial resources of the systemically important derivatives clearing organization or subpart C derivatives clearing organization.
(2) The rules and procedures described in paragraph (b)(1) of this section shall:
(i) Enable the systemically important derivatives clearing organization or subpart C derivatives clearing organization promptly to meet its payment obligations in all relevant currencies;
(ii) Be designed to enable the systemically important derivatives clearing organization or subpart C derivatives clearing organization to avoid unwinding, revoking, or delaying the same-day settlement of payment obligations; and
(iii) Address the systemically important derivatives clearing organization's or subpart C derivatives clearing organization's process to replenish any liquidity resources it may employ during a stress event so that it can continue to operate in a safe and sound manner.
(a)
(1) Perform, on a daily basis, stress testing of its financial resources using predetermined parameters and assumptions;
(2) Perform comprehensive analyses of stress testing scenarios and underlying parameters to ascertain their appropriateness for determining the systemically important derivatives clearing organization's or subpart C derivatives clearing organization's required level of financial resources in current and evolving market conditions;
(3) Perform the analyses required by paragraph (a)(2) of this section at least monthly and when products cleared or markets served display high volatility or become less liquid, when the size or concentration of positions held by clearing members increases significantly, or as otherwise appropriate, evaluate the stress testing scenarios, models, and underlying parameters more frequently than once a month;
(4) For the analyses required by paragraph (a)(1) and paragraph (a)(2) of this section, include a range of relevant stress scenarios, in terms of both defaulting clearing members' positions and possible price changes in liquidation periods. The scenarios considered shall include, but are not limited to, the following:
(i) Relevant peak historic price volatilities;
(ii) Shifts in other market factors including, as appropriate, price determinants and yield curves;
(iii) Multiple defaults over various time horizons;
(iv) Simultaneous pressures in funding and asset markets; and
(v) A range of forward-looking stress scenarios in a variety of extreme but plausible market conditions.
(5) Establish procedures for:
(i) Reporting stress test results to its risk management committee or board of directors, as applicable; and
(ii) Using the results to assess the adequacy of, and to adjust, its total amount of financial resources; and
(6) Use the results of stress tests to support compliance with the minimum financial resources requirement set forth in § 39.33(a).
(b)
(1) Each systemically important derivatives clearing organization and subpart C derivatives clearing organization shall, at least monthly and more frequently as appropriate, conduct a sensitivity analysis of its margin models to analyze and monitor model performance and overall margin coverage. Sensitivity analysis shall be conducted on both actual and hypothetical positions.
(2) For the purposes of this paragraph (b), a sensitivity analysis of a margin model includes:
(i) Reviewing a wide range of parameter settings and assumptions that reflect possible market conditions in order to understand how the level of margin coverage might be affected by highly stressed market conditions. The range of parameters and assumptions should capture a variety of historical and hypothetical conditions, including the most volatile periods that have been experienced by the markets served by the systemically important derivatives clearing organization or subpart C derivatives clearing organization and extreme changes in the correlations between prices.
(ii) Testing of the ability of the models or model components to produce accurate results using actual or hypothetical datasets and assessing the impact of different model parameter settings.
(iii) Evaluating potential losses in clearing members' proprietary positions and, where appropriate, customer positions.
(3) A systemically important derivatives clearing organization or subpart C derivatives clearing organization involved in activities with a more complex risk profile shall take into consideration parameter settings that reflect the potential impact of the simultaneous default of clearing members and, where applicable, the underlying credit instruments.
(c)
(1) Perform, on a daily basis, stress testing of its liquidity resources using predetermined parameters and assumptions;
(2) Perform comprehensive analyses of stress testing scenarios and underlying parameters to ascertain their appropriateness for determining the systemically important derivatives clearing organization's or subpart C derivatives clearing organization's required level of liquidity resources in current and evolving market conditions;
(3) Perform the analyses required by paragraph (c)(2) of this section at least monthly and when products cleared or markets served display high volatility or become less liquid, when the size or concentration of positions held by clearing members increases significantly, or as otherwise appropriate, evaluate its stress testing scenarios, models, and underlying parameters more frequently than once a month;
(4) For the analyses required by paragraph (c)(1) and paragraph (c)(2) of this section, include a range of relevant stress scenarios, in terms of both defaulting clearing members' positions and possible price changes in liquidation periods. The scenarios considered shall include, but are not limited to, the following:
(i) Relevant peak historic price volatilities;
(ii) Shifts in other market factors including, as appropriate, price determinants and yield curves;
(iii) Multiple defaults over various time horizons;
(iv) Simultaneous pressures in funding and asset markets; and
(v) A range of forward-looking stress scenarios in a variety of extreme but plausible market conditions.
(5) For the scenarios enumerated in paragraph (c)(4) of this section, consider the following:
(i) All entities that might pose material liquidity risks to the systemically important derivatives clearing organization or subpart C derivatives clearing organization, including settlement banks, permitted depositories, liquidity providers, and other entities,
(ii) Multiday scenarios as appropriate,
(iii) Inter-linkages between its clearing members and the multiple roles that they may play in the systemically important derivatives clearing organization's or subpart C derivatives clearing organization's risk management; and
(iv) The probability of multiple failures and contagion effect among clearing members.
(6) Establish procedures for:
(i) Reporting stress test results to its risk management committee or board of directors, as applicable; and
(ii) Using the results to assess the adequacy of, and to adjust its total amount of liquidity resources.
(7) Use the results of stress tests to support compliance with the liquidity resources requirement set forth in § 39.33(c).
(d) Each systemically important derivatives clearing organization and subpart C derivatives clearing organization shall regularly conduct an assessment of the theoretical and empirical properties of its margin model for all products it clears.
(e) Each systemically important derivatives clearing organization and subpart C derivatives clearing organization shall perform, on an annual basis, a full validation of its financial risk management model and its liquid risk management model.
(f)
(g)
(1) Monitor, manage, and limit its credit and liquidity risks arising from its settlement banks;
(2) Establish, and monitor adherence to, strict criteria for its settlement banks that take account of, among other things, their regulation and supervision, creditworthiness, capitalization, access to liquidity, and operational reliability; and
(3) Monitor and manage the concentration of credit and liquidity exposures to its settlement banks.
In addition to the requirements of § 39.21, each systemically important derivatives clearing organization and subpart C derivatives clearing organization shall:
(a) Complete and publicly disclose its responses to the Disclosure Framework for Financial Market Infrastructures published by the Committee on Payment and Settlement Systems and the Board of the International Organization of Securities Commissions;
(b) Review and update its responses disclosed as required by paragraph (a) of this section at least every two years and following material changes to the systemically important derivatives clearing organization's or subpart C derivatives clearing organization's system or the environment in which it operates. A material change to the systemically important derivatives clearing organization's or subpart C derivatives clearing organization's system or the environment in which it operates is a change that would significantly change the accuracy and usefulness of the existing responses;
(c) Disclose, publicly and to the Commission, relevant basic data on transaction volume and values; and
(d) Disclose, publicly and to the Commission, rules, policies, and procedures concerning segregation and portability of customers' positions and funds, including whether each of:
(1) Futures customer funds, as defined in § 1.3(jjjj) of this chapter;
(2) Cleared Swaps Customer Collateral, as defined in § 22.1 of this chapter; or
(3) Foreign futures or foreign options secured amount, as defined in § 1.3(rr) of this chapter is:
(i) Protected on an individual or omnibus basis or
(ii) Subject to any constraints, including any legal or operational constraints that may impair the ability of the systemically important derivatives clearing organization or subpart C derivatives clearing organization to segregate or transfer the positions and related collateral of a clearing member's customers.
(a)
(1) Clearing and settlement arrangements;
(2) Operating structure and procedures;
(3) Scope of products cleared; and
(4) Use of technology.
(b)
(c)
(d) Each systemically important derivatives clearing organization and subpart C derivatives clearing organization shall facilitate efficient payment, clearing and settlement by accommodating internationally accepted communication procedures and standards.
(a)
(1)
(2)
(3)
(4)
(5)
(b)
(1) Recovery or orderly wind-down, necessitated by uncovered credit losses or liquidity shortfalls; and, separately,
(2) Recovery or orderly wind-down necessitated by general business risk, operational risk, or any other risk that threatens the derivatives clearing organization's viability as a going concern.
(c) (1) In developing the plans specified in paragraph (b) of this section, the systemically important derivatives clearing organization or subpart C derivatives clearing organization shall identify scenarios that may potentially prevent it from being able to meet its obligations, provide its critical operations and services as a going concern and assess the effectiveness of a full range of options for recovery or orderly wind-down. The plans shall include procedures for informing the Commission, as soon as practicable, when the recovery plan is initiated or wind-down is pending,
(2) A systemically important derivatives clearing organization or subpart C derivatives clearing organization shall have procedures for providing the Commission and the Federal Deposit Insurance Corporation with information needed for purposes of resolution planning.
(d)
(1) In evaluating the resources available to cover an uncovered credit loss or liquidity shortfall as part of its recovery plans pursuant to paragraph (b)(1) of this section, a systemically important derivatives clearing organization or subpart C derivatives clearing organization may consider, among other things, assessments of additional resources provided for under its rules that it reasonably expects to collect from non-defaulting clearing members.
(2) Each systemically important derivatives clearing organization and subpart C derivatives clearing organization shall maintain sufficient unencumbered liquid financial assets, funded by the equity of its owners, to implement its recovery or wind-down plans pursuant to paragraph (b)(2) of this section. In general, the financial resources required by § 39.11(a)(2) may be sufficient, but the systemically important derivatives clearing organization or subpart C derivatives clearing organization shall analyze its particular circumstances and risks and maintain any additional resources that may be necessary to implement the plans. In allocating sufficient financial resources to implement the plans, the systemically important derivatives clearing organization or subpart C derivatives clearing organization shall comply with § 39.11(e)(2). The plan shall include evidence and analysis to support the conclusion that the amount considered necessary is, in fact, sufficient to implement the plans.
(3) Resources counted in meeting the requirements of §§ 39.11(a)(1) and 39.33 may not be allocated, in whole or in part, to the recovery plans required by paragraph (b)(2) of this section. Other resources may be allocated, in whole or in part, to the recovery plans required by either paragraph (b)(1) or paragraph (b)(2) of this section, but not both paragraphs, and only to the extent the use of such resources is not otherwise limited by the Act, Commission regulations, the systemically important derivatives clearing organization's or subpart C derivatives clearing organization's rules, or any contractual arrangements to which the systemically important derivatives clearing organization or subpart C derivatives clearing organization is a party.
(e)
This subpart C is intended to establish standards which, together with subparts A and B of this part, are consistent with section 5b(c) of the Act and the Principles for Financial Market Infrastructures published by the Committee on Payment and Settlement Systems and the Board of the International Organization of Securities Commissions and should be interpreted in that context.
For purposes of enforcing the provisions of Title VIII of the Dodd- Frank Act, a systemically important derivatives clearing organization shall be subject to, and the Commission has authority under the provisions of subsections (b) through (n) of section 8 of the Federal Deposit Insurance Act (12 U.S.C. 1818) in the same manner and to the same extent as if the systemically important derivatives clearing organization were an insured depository institution and the Commission were the appropriate Federal banking agency for such insured depository institution.
A systemically important derivatives clearing organization shall provide notice to the Commission in advance of any proposed change to its rules, procedures, or operations that could materially affect the nature or level of risks presented by the systemically important derivatives clearing organization, in accordance with the requirements of § 40.10 of this chapter.
7 U.S.C. 2 and 12a.
(c) * * *
(12) All functions reserved to the Commission in § 39.31 of this chapter; and
(13) The authority to approve the application described in § 39.34(d) of this chapter.
7 U.S.C. 1a, 2, 4a, 6c, 6d, 6g, 7a, 12, 19, and 24, and 11 U.S.C. 362, 546, 548, 556, and 761–766, unless otherwise noted.
(b)
(1) The net equity claim of the member based on its customer account; and
(2) Any obligations due to the clearing organization which may be paid therefrom, including any obligations due from the clearing organization to the customers of other members.
The following appendix will not appear in the Code of Federal Regulations.
On this matter, Chairman Gensler and Commissioners Chilton, O'Malia, and Wetjen voted in the affirmative.